Guardianship is a legal process used to protect and care for someone not “of sound mind,” meaning they have problems thinking for themselves. They suffer impaired memory, thought, or understanding. Mental impairment makes them susceptible to undue influence or even fraud.
Guardianships have both good and bad aspects to them. So what are the pitfalls of guardianship?
The pitfalls of guardianship include added responsibility, a change in rights, time commitment, and legal intervention. Living under guardianship removes rights from a person, so this should be done only as a last resort. However, when someone cannot care for themselves as a person or financially, sometimes this is the best option available.
- Pitfalls or Disadvantages of Guardianship
- Advantages of Guardianship
- When Do You Need a Guardianship?
- Do I Get Paid for Guardianship?
- Is Guardianship for You?
- What Is the Difference Between a Guardianship and a Conservatorship?
- What Is the Difference Between Guardianship and Adoption?
- Related Articles
Pitfalls or Disadvantages of Guardianship
First, let’s define a few terms. We know that guardianship protects the ward. The ward, depending on the state, is a minor (under 18 years), or an adult needing care or protection. A guardian is someone who makes decisions for the health, home, assets, and property of that ward. Some states use conservatorships for the adult child or for assets and property. In that case, the guardian is called a conservator, and the ward is the conservatee.
Being the legal guardian of a ward creates the burden of added responsibility. You no longer “get” to care for them. Now you are legally obligated to do so. Maybe you are the grandparent and are suddenly responsible for your grandchildren. Maybe your adult child is unable to care for themselves, and you must help them with all aspects of their life.
Whatever the situation, the dependent must rely on you to assist them either physically or mentally in their life. You will be making decisions that either the biological or legal parent or adult would have made for themselves or their children. Don’t forget to add liability to your list. If your charge damages property, is at fault in a car accident or creates a debt, you are responsible for the ward and, therefore, the damages.
Change in Rights
Guardianships change the rights of both the guardian and the ward. While the guardian is now in charge of making medical, financial, and daily life decisions for someone unable to make them for themselves, this only goes so far as a person’s inability to be self-sufficient. An adult under guardianship no longer has the right to medical consent. The guardian takes care of that. The advocate, or guardian, decides if the adult ward should be allowed to marry or have children. It often removes their choice of residence.
Being a guardian is a huge time commitment. Sometimes you don’t know how long it will last. In some cases, you’re in it for life. And it’s not just the length of time you care for the ward. Sometimes it’s homework help or travel time. Or just some quality attention. Sometimes your dependent is physically unable to take care of themselves which leaves you helping them with personal hygiene, appearance, or financial matters. When the legal or biological parents take over caring for their child again, the guardianship ends.
Obtaining legal guardianship requires going through the court system. For example, this entails responsibilities such as filing fees and court appearances. It’s beneficial to get an attorney because they can help you fill out the paperwork, walk you through the process, and take one major stressor away from you when you are busy taking care of your new dependent.
Guardianships may include filing fees, fees for the ward’s attorney, fees for the petitioner’s attorney, and fees for any examining committee members. If a professional guardian is required, there may be fees for that. Some states are more affordable and require fewer expenses. Fees for basic guardianship may have no filing fees up to $5,000. Guardianship fees may run from $500 to $2,000. But guardianships requiring litigation can top $50,000.
Advantages of Guardianship
Sometimes guardianship is the only option you can take. You’re doing your best to make decisions for someone who can’t, and sometimes you can share the responsibility.
As legal guardian of a ward, you can usually make medical, financial, and educational decisions for them. Having legal rights over the ward can simplify decision-making and permission requirements. Guardians have the right and responsibility to use sound solutions for the ward.
Guardianship of the Person and the Estate
The court may prefer to split the responsibilities of guardianship, which can reduce your work. For example, if two guardians are available, one adult may have custody of the person, while another adult has control of the estate or finances.
As guardian of the person, the responsible adult:
- offers safety and protection
- provides for the care of the ward
- ensures supervision of the ward
- is responsible for medical, dental, optometry, and any other health need
- assists in physical, mental, and emotional growth
- provides for education and any special needs
The guardian of the estate:
- manages a child’s property with care
- invests money intelligently
- manages a child’s income or money
Besides reducing responsibility, it can ease the stress of record-keeping for annual or biannual court appearances. However, a child only requires a guardian of the estate when they inherit a large amount of money or property. Therefore, an estate guardian is not necessary for any welfare payments or the average property of a child, like clothes, books, and toys.
When Do You Need a Guardianship?
It’s not always an easy decision to choose to apply for guardianship. But why would you do it? Here are a few reasons why guardianship may be necessary.
The primary parent may be incarcerated in either jail or prison. As a result, the parent cannot care for the child and needs an adult to make everyday decisions plus anything else necessary during their absence.
One or both parents may be in the military on active duty or deployed overseas without the ability to care for their offspring. The parent may choose someone to act as guardian in their stead until they return.
Drug or Alcohol Abuse
When parents abuse narcotics or alcohol, child responsibilities can fall to the wayside. In many cases, grandparents or aunts and uncles will step in to take guardianship of the child.
Attending a Rehab Program
Rehab programs usually require an in-house stay for a certain period. As the parents face withdrawal, children will need to stay with a family member or other adult who can care for them until returning home.
When a parent has a history of abuse, it may not be safe for the child to continue residing in the same home. Social services may decide to rehome the children until the abusive situation is under control. Unfortunately, that may never happen in some cases, and the parent can permanently lose parental rights.
Physical or Mental Illness
Mental illnesses such as severe autism or Down syndrome can leave a parent unable to care for their child. In the case of a physical illness such as advanced cancer or a hospitalizing accident, a child may need a part-time or full-time home either temporarily or permanently, depending on the situation.
A parent may have an alternate reason not listed as to why they’re left unable to care for their child. Sometimes, a parent is they can’t raise their child in an acceptable situation. The court will look at what is in the child’s best interest to make sure the child is raised in a safe, stable, and loving environment. A legal guardian cares for a child when the parents are unable or unwilling to do so.
Do I Get Paid for Guardianship?
Yes, you can receive payment, depending on the judge and how much you do. Payment is usually five percent of the child’s income. If the ward needs a lot of care, the court may award the guardian more. If the child needs very little maintenance, the guardian may receive less. It all depends.
Is Guardianship for You?
Now that you’ve learned some pros and cons of guardianship, only you can decide if this is something you want to do. Bringing a child into your home is a huge decision, but one with many rewards, too. Pitfalls exist in every circumstance. However, the good can vastly outweigh the bad and turn a difficult situation into cherished memories.
What Is the Difference Between a Guardianship and a Conservatorship?
Although the definition differs by state, the difference is usually age and type of care. Guardianships are almost always for the protection of minors, and conservatorships are for adult children or others over 18 years. In addition, guardianships are of the person, and conservatorships are of the estate, meaning it covers property and financial matters.
What Is the Difference Between Guardianship and Adoption?
Many similarities exist between guardianships and adoption, but the main similarity is that the child has an adult they can depend on to be there for them. The child has someone who can help them make the big decisions they can’t. But, of course, there are some differences, too.
Guardianships are temporary. Even a “permanent” guardianship usually ends at 18, ending all responsibilities and rights. If a child returns to the parents, the guardianship ends. If another guardian is chosen for some reason, any rights you have to the child end. The only way guardianship continues into adulthood is if your state uses adult guardianship instead of conservatorship for adult children.
When it comes to legal guardians, the parents usually get a choice in the matter. Often they will ask their parents, siblings, or best friends to care for their children. But seldom do parents get to choose who adopts their child.
With guardianships, the parents still have rights and responsibilities. They can come back and take over parenting the child, but they also must support their child financially. The guardian, too, has rights and responsibilities. They have the right to the child and create a bond or strengthen one already there. Guardians also have an obligation to the court to prove adequate care for the child.
When the child is adopted, the birth parents lose all rights to the child but no longer have to pay support. The adoptive parents will always be parents to the child and have benefits with legal rights of parentage.
Which choice is for you? Before you decide, remember to consult an attorney for your needs. Each state is different and therefore has different rights and rules. An attorney can guide you through the process while answering your legal questions.
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Elizabeth Criman is a content and copywriter with a B.A. in English and Creative Writing. She is certified through the American Writers & Artists Institute and loves making words beautiful and fun to read. Elizabeth specializes in bringing awareness to products and services through engaging blogs and articles. You can find her on LinkedIn at Elizabeth (Connally) Criman