What Is a Guardian?
A guardian is an individual to whom a judge or a will gives the legal responsibility to care for a child or an adult who does not have the capacity for self-care. The appointed individual is often responsible for both the care of the ward (the child or incapable adult) and that person's financial affairs.
However, that second role—managing financial affairs—is usually called a conservatorship in law. A guardian may be both a guardian and a "conservator." Some states, California, for example, call the the two roles "conservator of the person" and "conservator of the estate."
- A guardian has been given the legal responsibility to care for a child or an adult who does not have the capacity for self-care.
- A guardian may also be called a conservator when the role includes managing the finances of the child or adult.
- Parents will often name a guardian for their children in the case of the parents' death or other circumstance.
- Guardians are subject to scrutiny by the courts, and often must prepare financial statements documenting their management of the ward's finances.
- Courts with limited jurisdictions, such as probate, surrogate, and family courts, usually handle guardianship issues.
Understanding What Guardians Do
The guardian is usually either named or appointed in a will or a court of law by a judge. Parents will often name a guardian to their children in the event of the parents' death or inability to provide for the children. Guardians are governed by state and local laws and serve as the ward's fiduciary.
Because guardians exercise such extensive control over their wards, they are subject to scrutiny by the courts. Guardians often must prepare financial statements documenting that they have managed the ward's finances in the best interest of the ward. Guardianship issues are typically handled by courts with limited jurisdictions, such as surrogate, family, and probate courts.
Guardian vs. Power of Attorney
A guardianship is similar to a power of attorney in that both empower an agent to make legal, financial, and/or medical decisions for another person. However, there are important differences. An individual can choose to whom they give power of attorney and under what circumstances, while a guardian is court-appointed and the individual may not have any say over the guardianship.
A guardian's powers may be more expansive, in that their court order nature means that third parties can be legally compelled to recognize their authority to act on behalf of the ward, but a guardian's decision is also subject to the court's approval. A power of attorney offers more flexibility, privacy, and control to the principal, and at a lower cost than the court costs associated with seeking a court-ordered guardianship.
As with the difference between a guardian and a conservator, there can be a variety of types of power of attorney. These can affect how long the power of attorney lasts, what causes it to go into effect and what is covered. For example, a medical power of attorney or durable power of attorney for health care is limited to making medical decisions for the individual.