Georgia Wills, Trusts, Probate and Estate Planning Blog

Guardianship: Making the Right Choices

Parents of children who have disabilities have many issues to worry about. Perhaps one of the greatest is who is going to look out for and protect their child when they are no longer able to do so? When thinking of this eventuality, parents may turn to other family members or friends to step into their role should they become incapacitated or die. Alternately, parents may arrange to have this done by an individual advocate or a nonprofit, community-based organization whose mission is to support and advocate for individuals with disabilities.

Advocates can advise and offer assistance concerning the person who has special needs, but cannot make decisions that are legally binding for that person. The power to make legal decisions for another individual is done through guardianship or conservatorship.

What is Guardianship/Conservatorship?

Every person eighteen years of age or older is deemed to be competent by law, regardless of his or her actual ability or capacity. A guardianship or conservatorship, in general, is a legal mechanism that must be approved by a court that grants a competent adult legal power to make decisions for another person, one who is considered incapable of making decisions for himself or herself. This person may be a minor (under 18 years of age) or an adult who has been declared incompetent by the court. In the case of a minor, guardianship will generally terminate when the child turns 18, or, in come states, upon marriage if the child marries before age 18.

Legislation regarding guardianship varies by state, but generally, the guardianship procedure requires a petition to be filed in Probate Court. Also, a clinical team (consisting of a physician, licensed psychologist and social worker) must report that the individual is incapable of making informed decisions with respect to personal and financial affairs, and that failure to appoint a guardian would create an unreasonable risk to the individual’s health and safety.

When parents prepare for the future by making a will, it is crucial to consider the issue of naming a guardian or conservator for a dependent child or adult with a disability. Unless the parents’ will specifies who they want as guardian or conservator, the courts will decide. If appointed, a guardian has the control over the ward’s (the person who is represented by the guardian) personal and financial affairs. A guardian must file an inventory and annual accounts with the Probate Court. As a result of relatively new case and statutory law, there are certain important decisions that a guardian cannot make without specific court authorization. These include consenting to treatment with anti-psychotic medications, admission to psychiatric hospitals or consenting to experimental medical treatment.

There are different types of guardianship or conservatorship, each of which confers different powers.

A Natural Guardian generally refers to a parent. In most cases, a natural guardian has custodial rights but only limited rights to control the assets of a ward.
A Guardian Ad Litem is often appointed only for the limited purposes of litigation.
Guardian of the Estate, Guardian of the Property, or Conservator usually refers to someone appointed to manage assets and make financial decisions for the ward.
General Conservatorship or Guardianship of the Person and Estate typically provides full decision-making powers (with respect to finances, medical decisions, living arrangements, etc.) for a person deemed to be unable to make decisions or perform necessary tasks on his or her own.

Limited Guardianship/Conservatorship

Powers of a conservator or guardian can often be limited to reflect the needs of the individual who has a disability. With a limited guardianship, the guardian is granted full power only in a specified area or areas in the life of the person with a disability. In fact, laws in a number of states specifically provide for the appointment of a limited conservator or guardian for certain individuals with developmental disabilities. A limited conservator or limited guardian is appropriate for individuals whose conditions impair their ability to care for themselves or their property, but not to the extent that a general conservatorship or full guardianship is required. A limited conservatorship or limited guardianship encourages maximum self-reliance and independence of the adult with developmental disabilities by giving the conservator or guardian power only over those activities the individual is unable to handle.

Alternatives to Guardianships/Conservatorships

Not all situations require the appointment of a guardian. In certain situations, a person with a disability may only need assistance and protection managing money rather than require the services of a court-appointed guardian and all that it entails. In these circumstances, an alternative to guardianship is a Supplemental Security Income Representative Payee who can be designated by the Social Security Administration to receive and disburse SSI benefits on behalf of that person. The Representative Payee must make an annual accounting to the Social Security Administration on how the funds are spent.
Another alternative to guardianship is a Durable Power of Attorney. By signing a Durable Power of Attorney, a person with a disability can allow certain decisions such as those concerning management of his or her property, living situation or medical care to be made by another specified person, without court intervention. Certain rights can be preserved without the expense and time of court proceedings.

Additionally, a Special Needs Trust can be effectively administered by a trustee (one who manages the trust) or co-trustee to manage the finances and personal effects of a person with a disability, in lieu of a court-appointed general conservatorship or guardianship. In some situations, a skilled trustee or co-trustee can help meet the financial and personal needs of a person with a disability without court intervention or a restriction of certain rights. However, in the situation of only one individual serving as trustee and guardian, opportunities for “checks and balances” are decreased, posing the possibility for conflict of interest.

Whom to choose as Guardian

The appropriateness of the person being nominated should take into account some basic, yet often overlooked aspects:

Age: The age of the potential guardian in relation to the length of time that the guardian will have to serve should be considered. If the ward is a child, he may outlive a guardian such as a grandparent, aunt or uncle. For this reason, or in case any other situation arises where the guardian is unable to fulfill the task, parents should consider naming a “back-up” or contingent guardian in addition to their first choice.

Existing relationship with the ward: The guardian’s function is necessarily one that entails making personal decisions for the ward, so the guardian should be someone whom the individual trusts and with whom he or she has a good relationship, and who will actively participate in care decisions, provision of services and attention to the needs of the individual. Professionals or institutions, such as attorneys, accountants or banks, can be named but are not necessarily a good choice since their services are usually costly and, lacking any personal relationship to the individual, may not be sensitive to his or her needs.

What is the role of other family members?

Family members are usually the first and best choice as guardian or conservator; however, it should not always be presumed that this will be the case. Family members may not be suited for the role for a variety of reasons: they may not live nearby; they may not have the ability to assume the responsibility; naming one sibling or family member over another may cause friction; or they may simply not want to take on the job. However, by naming co-guardians to share the responsibilities or by asking them to assume other, related roles, family members can be included. They can be named to act as advisors to the guardian or conservator, be notified of certain actions and be copied on all important documents relating to decisions made by the guardian.

Making choices

A guardian or conservator will have considerable power in the life of the individual with a disability, so the individual should have as much input as possible in the choice. The process should evolve from discussions that include the person who has a disability as much as possible and an attorney who is knowledgeable in this type of planning. A clear, realistic picture should emerge of what possible future needs and decisions will have to be addressed (financial, residential, educational, health-related) and how much help the individual will need with each. The wishes and feelings of the parent and the child can be objectively discussed and incorporated into the level of support that is needed, and choices for guardians or advocates can be made as necessary.

SOURCE: Parent to Parent of Georgia in an article by Nadine Vogel reprinted from Exceptional Parent Magazine

Ten Things to Think About: Choosing a Guardian for Your Child

Having children adds an new and extremely important dimension to estate planning. If all of a child's legal parents are dead or incapacitated, and never made arrangements for such an emergency, the child will have to be placed with a new family. This is an extremely disruptive process for the child, even if the new family are grandparents or other relatives. It can be avoided if a parent chooses a guardian for the child in a will or a grant of guardianship.

1. DIFFERENT PURPOSES. There are two kinds of guardians: guardians of the estate, and guardians of the person. The former manages the money or assets held by a child, either when the parents are alive or after their death. A guardian of the person, however, is someone who becomes a substitute parent for the child should the child's actual parents die or become incapacitated or otherwise unable to take care of them.

2. MATCHING ATTRIBUTES. When selecting a guardian, be aware of the two types, and choose people with the skills or attributes that best suit those roles. In other words, your accountant brother-in-law may be a terrific choice as guardian of the children's estate, but his workaholic nature may make him a poor choice for guardian of the person.

3. MULTIPLE GUARDIANS. Just as you can choose different people to be guardians of the estate and person, you can also choose more than one of each type if you have multiple children. For instance, if you have a large family and know that the burden of raising multiple children or managing their assets would be too much to ask of one person, you can assign certain guardians to certain children. Whereas there are probably fewer emotional ramifications to such a choice when guardians of the estate are involved, there are larger considerations at issue when dealing with guardians of the person. Do you really want your children split up into different families if you and your spouse die or become incapacitated before they are grown? Maybe, maybe not.

4. SHARED VALUES. Choose someone you know well and who shares your goals, values, and parenting style, whether you are selecting a guardian of the person or estate. Even if the person you select is limited to making financial decisions on your child's behalf, you want that person to share your philosophy of childrearing in general.

5. FINANCIAL STABILITY. Choose someone who has the financial resources to care for your children. It costs a lot of money to raise and educate children, and you do not want to impose these economic burdens on someone who can not meet them.

6. LONGEVITY. Choose someone young enough to see their responsibilities through to your child's adulthood, and in good enough health to withstand the challenges of childrearing. While physical disabilities do not necessarily preclude good parenting, it is wise to consider health factors that may limit a person's life expectancy or ability to parent. It may be tempting to choose your own parents as guardians, but logically speaking they are less likely to outlive you than are persons your own age or younger.

7. BE INDEPENDENT. Don't be influenced by others' wishes as to whom you should select to be your child's guardian. Unless the person you've selected opposes your choice, this decision belongs to the parents alone.

8. CONSIDER CHARACTER. Don't choose someone that a court would not approve as a guardian, such as someone with a history of drug or alcohol abuse or a criminal record.

9. TALK IT OVER. Although the guardian selection decision belongs to the parents, it is important to get approval from the person you are considering before you make it final. There may be valid reasons why someone can not fulfill your request, and it is better to find that out while you still have the option of making another selection.

10. GET IT IN WRITING. Once your decision is final, consult your attorney to draft the necessary documents to make your choices legally binding and official. Wills, trusts, and other legal documents can be used to implement your guardianship decisions. Your attorney can advise you on proper procedure, prepare the necessary paper work, and file any required documents.

SOURCE: FindLaw

Guardianship of Minors

The judge of the probate court of the county of the domicile of a minor having no guardian has the power to appoint a temporary or permanent guardian of person and/or conservator of property, or both, of such minor.

            If the minor is over 14 years of age before the guardian is appointed, the judge of the probate court is required to follow any selection made by the minor, provided the selection is a judicious one.   The selection once made cannot be changed by the minor, except by showing cause for the removal of the first guardian.

            The probate court has no jurisdiction in cases concerning loss of custody by a parent or guardian due to cruel treatment, abandonment, or immoral conditions.

            There is no authority vested in the judge of the probate court to displace a parent as guardian of the person of a minor.  Thus, the judge of the probate court cannot appoint a permanent guardian of the person of a minor with living parents, unless the parents’ rights have been terminated.

            Guardians of minors fall into the following general classification:

1.     Natural Guardians

Natural Guardians:     Unless otherwise provided by law, if both parents are alive, either is the natural guardian of the minor child.  If the parents are legally separated or divorced, the custodial parent is the natural guardian. 

2.     Testamentary Guardians with Letters

Testamentary Guardians:   A testamentary guardian is a guardian of a minor appointed by the will of the minor’s parents.  Every parent may, by will, appoint a conservator for the property left to his minor children under that will.  Every parent may also, if he is the last parent to survive, appoint by will a conservator over the minor’s property and a guardian over the minor’s person. 

3.     Testamentary Conservator with Letters

4.     Guardians of person

Guardians of Person:  A guardian of the person is defined to be one who has been lawfully invested with the care of the minor whose natural guardian is dead or has relinquished his or her parental rights.  The appointed guardian is considered as standing in the place of the natural guardian for the sole purpose of the care and maintenance of the minor.

5.     Conservators of property

Conservators of Property:  In the event a minor possesses property and there is no natural guardianship designation made, a conservator of property must be appointed to take charge of and secure any such property for the minor and to hold such security until minor reaches the age of majority. 

6.     Guardians of both person and Conservator of property

Guardians of person and conservator of property:  Are a combination of the above listed classifications.

7.     Guardians ad litem

Guardians ad litem:  Whenever a minor has an interest in any litigation pending in any court in this state and has no guardian, or his/her interest is adverse to that of the guardian, such court may appoint a guardian ad litem who is responsible to the minor for his conduct in connection with the litigation in the same manner as if he were a legally qualified guardian.  The guardian ad litem is liable to the ward for any damages which may result from any culpable omission or negligence on his part.  The appointment of a guardian ad litem is a right inherent in every court, not the probate court alone.

8.     Standby guardians

Standby Guardianships:   A parent or legal guardian of a minor child may sign a document designating another person to serve as “standby guardian” for the minor in the event the parent or guardian is determined to be unable to care for the minor due to the parent’s or guardian’s physical or mental condition or health including a condition created by medical treatment.

9.     Temporary guardians of minors

Temporary Guardians:  An appointment of a temporary guardian of the person of the minor may be ordered when need is alleged by the person having actual physical custody of the said minor.  However, no temporary guardian may be appointed unless proper notice is given to the natural parents/guardians or if any objection is filed by a natural parent/guardian.

10.Temporary substitute Guardian

Temporary substitute Guardian:  Upon its own motion or on the petition of any interested party, including the ward, the court may appoint a temporary substitute guardian for a ward if it appears to the court that the best interest of the ward requires immediate action.  The temporary substitute guardian shall be appointed for a specified period not to exceed 120 days.

11.  Temporary substitute Conservator 

Temporary substitute conservator:  Upon its own motion or upon the petition of any interest party, including the ward, the court may appoint a temporary substitute conservator for a ward if it appears to the court that the best interest of the ward requires immediate action.

SOURCE: Glynn County Probate Court

Choosing a Guardian for Your Children

If you have children, you should choose a personal guardian -- someone to raise them in the unlikely event you can't.

If your children are young, you've probably thought about who would raise them if for some reason you and the other parent couldn't. It's not an easy thing to consider. But you can make some simple arrangements now that will allay some of your fears, knowing that in the extremely unlikely event you can't raise your kids, they will be well cared for.

All you need to do is use your will to name the person you want to be the "personal guardian" of your children if one is ever needed. Then, if a court ever needs to step in and appoint a guardian, the judge will appoint the person you nominated in your will -- unless it is not in the best interests of your children for some reason.

If you don't name a guardian in your will, anyone who is interested can ask for the position. The judge then must decide, without the benefit of your opinion, who will do the best job of raising your kids.

Naming a Personal Guardian

You should name one personal guardian (and one alternate, in case your first choice can't serve) for each of your children.

Legally, you may name more than one guardian, but it's generally not a good idea because of the possibility that the co-guardians will later disagree. On the other hand, if you prefer that two people care for your child -- for example, a stable couple who would act as co-parents -- name both of them, so that they each have the legal power to make important decisions on behalf of your child.

Here are some factors to consider when choosing a personal guardian:

• Is the prospective guardian old enough? (You must choose an adult -- 18 years old in most states.)
• Does the prospective guardian have a genuine concern for your children's welfare?
• Is the prospective guardian physically able to handle the job?
• Does he or she have the time?
• Does he or she have kids of an age close to that of your children?
• Can you provide enough assets to raise the children? If not, can your prospective guardian afford to bring them up?
• Does the prospective guardian share your moral beliefs?
• Would your children have to move

If you're having a hard time choosing someone, take some time to talk with the person you're considering. One or more of your candidates may not be willing or able to accept the responsibility, or their feelings about acting as guardian may help you decide.

Naming the Guardian When you've made your decision, all you need to do is put your choice of guardian, and an alternate in case your first choice isn't available, in your will. If you haven't made a will yet, but you have children, now is the time. Quicken WillMaker Plus (Nolo) will create a will for you and allow you add a guardian for your children, as well as an alternate.

Choosing Different Guardians for Different Children

Most people want their children to stay together; if you do, name the same personal guardian for all of your kids.

You can, however, name different personal guardians for different children. Parents may do this, for example, if their children are not close in age and have strong attachments to different adults outside of the immediate family. For instance, one child may spend a lot of time with a grandparent while another child may be close to an aunt and uncle. Or, if you have children from different marriages, they may be close to different adults. In every situation, you want to choose the personal guardian you believe would be best able to care for each child.

Choosing a Different Person to Watch the Checkbook

Some parents name one person to be the children's personal guardian and a different person to look after financial matters. Often this is because the person who would be the best surrogate parent would not be the best person to handle the money.

For example, you might feel that your brother-in-law would provide the most stable, loving home for your kids, but not have much faith in his abilities as a financial manager. Perhaps you have a close friend who cares about your kids and would be better at dealing with the economic aspects of bringing them up. Provided that your brother-in-law and your friend agree, you can name one as personal guardian and the other as custodian or trustee to manage your children's inheritance.

If You and the Other Parent Can't Agree

When you and your child's other parent make your wills, you should name the same person as personal guardian. If you don't agree on whom to name, there could be a court fight if both of you die while the child is still a minor. Faced with conflicting wishes, a judge would have to make a choice based on the evidence of what's in the best interests of your child.

Again, talk with the people you'd each like to name. Candid discussions with your potential guardians may bring new information to light and help you reach an agreement.

Making Your Wishes Known to the Guardian

Most people have strong feelings about how they want their children to be raised. Your concerns may cover anything from religious teachings to what college you'd like a particular child to attend.

One option is to write a letter to the personal guardian, outlining thoughts and feelings about how the children should be raised. Try not to put in too much detail, though; it could cause your nominee much guilt and frustration later if unexpected circumstances thwart his or her attempts to carry out your plans to the letter.

The best guarantee of an upbringing you would approve of is simply to choose someone who knows you and your children well, and whom you trust to navigate life's complexities on your children's behalf.

If You Don't Want the Other Parent to Raise Your Child

If one of a child's parents dies, the other parent usually takes responsibility for raising the child. This is what most people want.

If you are separated or divorced, however, you may feel strongly that the child's other parent shouldn't have custody if something should happen to you. But a judge will grant custody to someone else only if the surviving parent:

• has legally abandoned the child by not providing for or visiting the child for an extended period, or
• is clearly unfit as a parent.

In most cases, it is difficult to prove that a parent is unfit, unless he or she has serious problems such as chronic drug or alcohol abuse, mental illness, or a history of child abuse.

If you honestly believe the other parent is incapable of caring for your children properly, or simply won't assume the responsibility, you should write a letter explaining why, and attach it to your will. The judge may take it into account. Judges are always required to act in the child's best interests. In choosing a guardian, a judge commonly considers a number of factors; you may want to address them if you write a letter explaining your choice for personal guardian. Here are the big ones:

• the child's preference, to the extent it can be ascertained
• who will provide the greatest stability and continuity of care
• who will best meet the child's needs
• the relationships between the child and the adults being considered for guardian, and
• the moral fitness and conduct of the proposed guardians.

SOURCE: Nolo

Wills FAQ Part 4: Can I use my will to name a guardian to care for my young children and manage their property?

Yes. If both parents of a child die or become otherwise unable to care for a minor child, another adult -- called a "personal guardian" -- must step in. The personal guardian will be responsible for raising your children until they become legal adults. You and the child's other parent can use your wills to nominate someone to fill this position. To avert conflicts, you should both name the same person. For more information, see Choosing a Guardian for Your Children.

You can choose that same guardian to manage property that you leave to your minor children or you can name someone different. You can name a "property guardian," a "custodian", or a "trustee" to manage the property:

• Name a property guardian. You can simply name a property guardian to manage whatever property the child inherits, if there's no other mechanism (a trust, for example) to handle it. The guardian will manage the property until the child reaches the age of 18.
• Name a custodian under the Uniform Transfers to Minors Act (UTMA). In every state except South Carolina and Vermont, you can choose a custodian to manage property you are leaving to a child. The custodian will step in to manage the property until the child reaches the age specified by your state's law -- 18 in a few states, 21 in most, 25 in several others.
• Set up a trust for each child. You can use your will to create a trust for any property the child inherits and to name a trustee to handle the trust property until the child reaches the age you specify.
• Set up a "pot trust." If you have more than one child, you may want to set up just one trust for all of them. This arrangement is usually called a pot trust. You name a trustee to decide what each child needs and to spend money accordingly.

SOURCE: Nolo