You’ve heard the term “legal guardian,” but you wonder how it might fit into estate plans and your role as the executor. In this post, we’ll explore what a legal guardian is and why someone might need a legal guardian. Stay tuned for our second post on the topic, which will explore how a legal guardianship can be used in a will and in estate planning, as well as the relationship between an executor and a legal guardian.
A legal guardian is a person with the legal authority and responsibility to care for and make decisions for another person. As we often discuss regarding the executor role, laws vary by state. (Remember, for example, that executor fees vary by state.) Laws regarding legal guardianship also vary by state. Even the terminology may change from state to state. Like in some states a legal guardian refers only to minors, and adults needing the same care and decision-making assistance are in a conservatorship, not a legal guardianship. But in other states, a conservator takes care of money and a legal guardian takes care of the individual.
When thinking about people needing a legal guardian, it is easiest to divide these people into two categories–children and adults. For children, a legal guardian is usually needed if their parents are dead, incapacitated, or (in some cases) incarcerated. For adults, a legal guardian is needed when they have severe handicaps, severe disabilities, mental impairments (like dementia), are incapacitated, and are unable to care for themselves.
A legal guardian is responsible for physical well-being and care, and can make major and minor decisions for the person in their care. There are types of legal guardianship that are typically divided between care for the person and care for the estate, though it is possible for a legal guardian to do both. Care for the person can include things as minor as planning meals for a child or as major as making decisions about medical care. Care for the estate can include things like paying bills and administering bank accounts.
While technically anyone could serve as a legal guardian, it is most typical for someone with a personal relationship to serve in this role. Often a legal guardian is a family member. As with the administration of an estate, the court will be involved in officially naming a person to the legal guardian role. This will involve filing paperwork with the court and making appearances before the court. In some ways this is like the probate process for a will.
For children (minors), legal guardianship usually only lasts while the child is a minor. For adults, legal guardianship can be temporary, but often lasts until the person is no longer incapacitated or impaired, or the person dies.
Where can I turn for help with the executor role?The executor duties can be daunting. That’s why we created Executor.org. Our Plan provides a customized checklist in which we break down each step you’ll need to take and provide helpful hints along the way. There are plenty of people who can help, and we’ve also created a guide to getting the right team in place so you don’t have to go it alone.