Articles & Alerts

Establishing Guardianship – If It’s Not Today, Then When?

August 29, 2022

By: Lina Fiks

Whether it is a distant family member who is unable to manage their own health or financial affairs, or a child with special needs, certain arrangements can be made to help loved ones. One such example is assigning a Guardianship.

As with many things in life, it is best to plan ahead to the extent possible and address this topic early in the interest of avoiding hardship down the road.

Guardianship is the legal process of establishing who will step in should a person become unable to care for their children or other loved ones. Whether this is a child, an elderly parent, a distant relative, or even a pet, you want to make sure that they will be taken care of, if the day ever comes whereby you’re not able to provide for them.

Once Guardianship is assigned, this individual will assume certain agreed-upon and documented responsibilities. It can include housing, medical, educational and any other basic needs.

Examples of types of Guardianships include:

  • Guardianship of Minors – to take care of a minor child, including making financial decisions for the minor (parent(s) should declare this decision in their will, which the state will take under advisement in the event that parent(s) pass while children are still minors.)
  • Guardianship of Elderly – ensuring that care is provided for an elderly person when they can no longer care for themselves. (These rights are not necessarily easily turned over. Depending upon the specifics to your jurisdiction, pursuing guardianship for an elderly person may require presenting the case to a judge who must deem that person unfit to make decisions.)
  • Legal Guardians for Adults – appropriate for a person with a disability that renders them incapable of caring for themselves
  • Medical Guardianship – is provided when a person is incapacitated and unable to make their own healthcare decisions
  • Pet Guardianship – establishes rights and ownership for your pet after you pass

Selecting a Guardian can be an emotional and frightening process and you may want to approach this subject when everyone is in a sound state of mind.  Additionally, guardianship alone may not account for all of the necessary arrangements. For example, if financial assistance is needed, revocable trusts can be useful tools to oversee a person’s assets.

Although it may be a difficult task to find someone with the same values as you, it is important to select an individual who will offer stability, love, guidance and be committed to the task.

One way to start is by listing all of your candidates, and asking yourself the following questions:

  • Are they themselves financially stable and fiscally responsible?
  • Are they willing?
  • Are they capable of carrying out the necessary tasks?
  • Are they healthy and of sound mind and body (as this is not a short-term commitment)?
  • Are they responsible?
  • Do they have children or older family members and if so – what type of care do they provide to them?
  • Will the new role interfere with their personal life or other responsibilities in a manner that will inhibit them from providing the best possible care for your dependents?
  • Are they planning to re-locate?

Once you determine who is your best candidate, as well as an alternative candidate, you will want to discuss your wishes with both of them.  Designating an alternate is essential, as in the event that your appointed candidate is unable to perform these duties (perhaps due to sickness, untimely death, etc.), the designated alternative candidate will be there to assume the role.

While there is no set way to enlist someone’s help in Guardianship, you may want to let them know how valuable they are to you and that you trust them with the well-being of your loved ones.  At some point in discussions, you will want to memorialize all of your wishes for the loved one, perhaps once the candidate agrees to Guardianship.

The next question is – When should you select a Guardian? Our view is, the sooner, the better.

Other times when it is important to re-evaluate your selection is:

  • Before a major medical procedure or treatment
  • After a divorce
  • After a remarriage
  • In the event that your current Guardian becomes unable to fulfill his or her duty

How to set up Guardianship:

  • You can enlist the help of a Trust and Estate Attorney who can help you navigate this process.
  • It can be done online free of charge, but understandably, some matters may get overlooked or fall through the cracks.
  • All guardianship must be signed and notarized in front of witnesses. As each state can have its own set of rules, be sure to follow your state’s regulations.

While this piece serves as a primer, depending upon your specific situation, there may be many more questions to discuss and address, such as:

  • Who can legally be a guardian?
  • How long does guardianship last?
  • How to appoint guardianship to an outside person vs family member?
  • What happens if I die without appointing a Guardian?

We have found that it is best to be prepared and try to plan ahead so that you can rest assured that your child or loved ones will be left with proper care, support, and love.   Because tomorrow is not guaranteed, this decision may be one of the most powerful choices that you will make as it relates to your loved ones. For more information or to discuss your specific needs in detail, contact your Anchin Relationship Partner or Lina Fiks, a member of Anchin Private Client, at [email protected].