Ten Things to Think About: Choosing a Guardian

Guardianships and conservatorships are established for people who need representatives to oversee their personal affairs. People who are incapacitated or otherwise disabled, and who therefore cannot make important decisions regarding their care, finances, and other aspects of their life, may come under the care of a legal guardian. This relationship is established by court order, but frequently, disabled individuals may have pre-selected their guardian in their will or by having executed a durable power of attorney for health care and/or a durable financial power of attorney.

Choosing a Guardian During Estate Planning

Many people decide to pre-select a guardian for themselves in the event that they are incapacitated or disabled. They might not trust the court to choose the appropriate guardian, or they simply might not want to risk such a situation. Choosing a guardian is generally a good idea since it ensures that the correct person would be in charge of the incapacitated person's personal affairs.

With a valid will, a durable power of attorney, and a medical directive, an individual is able to outline their precise wishes, circumscribe and properly define the powers of the guardian, and choose a secondary guardian to take the place of the primary guardian in the event that the primary guardian can't or doesn't want to fulfill their role.

Questions to Consider When Choosing a Guardian

When executing an estate plan (or a family member approving a court-ordered guardian), serious thought should be given to the following questions:

  1. Does the candidate have a reputation for honesty, integrity, and timeliness?
  2. Has the candidate ever been convicted of a crime?
  3. Has the potential guardian managed their personal matters in a responsible manner?
  4. Does the candidate have educational, professional, or business experience that lends itself to the performance of the duties of a guardian or conservator?
  5. Does the candidate have the time to devote to the required duties?
  6. Is the potential guardian in good health?
  7. Does the candidate have a history of substance abuse?
  8. Is the candidate likely to engender the respect, support, and cooperation of all persons affected by their decisions?
  9. If the ward is incapacitated, did the ward previously express their wishes as to whom to appoint as guardian?
  10. Although not required, is the potential guardian related by blood or marriage to the ward, or do they know the ward well enough to carry out that person's probable intentions?

General Considerations for Choosing a Guardian

In general, courts favor guardians who are closely-related to the ward. It's also important to be aware that most states don't allow someone to serve as a guardian if they've been convicted of a felony. Guardians have a responsibility to make decisions in the best interest of the ward. If such decisions demand reasonable cooperation with third parties, the guardian must make good faith efforts to cooperate with those third parties.

The guardian will be handling financial matters on behalf of the ward, from real estate, to stock investments, to paying living expenses and bills. For this reason, it's important that the guardian have the experience and skills necessary to manage these assets and ensure that the ward doesn't accrue excess debts during the period of incapacity or disability.

Have Additional Questions About Choosing a Guardian? Ask an Attorney

Although you may not feel that you need to, choosing a guardian is an important step in planning for the future. If you have questions about who you should pick as a guardian, or need help drafting any legal documents, it's best to consult with a qualified estate planning attorney in your area.

Next Steps

Contact a qualified family law attorney to make sure your rights are protected.

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