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Guardianship: When Is It Necessary?

Aug 17, 2018 - Guardianship by

Guardianship is a legal relationship in which a trusted person – called a guardian – takes responsibility for a ward. Guardianship can become necessary when a child needs a guardian because the child cannot be raised by his or her parents. Guardianship can also become necessary in cases of incapacity.

While the ability to have a guardian appointed by the court is vitally important if someone becomes too sick to be able to make decisions or manage his or her own affairs, many people want to avoid having a guardian appointed for them. A Miami estate planning attorney can provide assistance exploring alternatives to guardianship, so contact an attorney for help.

When is Guardianship Necessary?

Guardianship becomes necessary in any circumstances where someone lacks capacity to make his or her own decisions and act on his or her own accord.

A child needs a guardian because a child is not a legal adult. Parents are normally the guardians for children automatically, but this is not always the case. If a parent becomes incapacitated or passes away and can’t raise the child to adulthood, someone else will need to assume guardianship of the child.

Parents should typically work with an estate planning attorney to provide specific instructions regarding what should happen to children after the parent dies or becomes too sick to provide care. If parents do not choose who will become their child’s guardian, the court could be forced to select a person to fill this role and a custody battle could result.

Adults may sometimes need guardianship too. If an adult becomes physically or mentally unable to make decisions or express his or her preferences, then that adult may need a guardian. Family members or other concerned parties could initiate guardianship proceedings in order to have a guardian named and have that person vested with authority.

The court would hold an incapacity hearing to determine if the adult was, in fact, incapacitated and in need of a guardian. If so, the court would determine who is in the best position to act on behalf of the incapacitated person, who is called a ward. The guardian has a fiduciary duty to act in the ward’s best interests, and this is the highest duty one person can owe to another person. The court will oversee the actions of the guardian to make certain that he or she fulfills his fiduciary duty.

Many people don’t want to have a guardian appointed, however, because they don’t want their loved ones to have to go to court in case of incapacity or because they don’t want the court to decide who manages their affairs when they can’t.

As a result, it is common to work with an experienced attorney to make an incapacity plan so that a trusted person can be chosen to manage your own affairs if you become incapacitated. You can use tools such as a power of attorney to give someone authority so that you decide – and not a judge – who makes your decisions when you can’t.

A Miami estate planning attorney can help with naming a guardian for your children, avoiding guardianship, or petitioning for guardianship if your loved one becomes incapacitated. Give us a call today to learn more.