Legal Guardianship, Executors, and Powers of Attorney

In our first post on the subject of legal guardianship, we learned that a legal guardian has the legal authority to care for and make decisions for another person.  In our second post, we discussed why someone should put legal guardianship plans in their will and estate planning.  Here, we’ll look at the relationship between legal guardians and executors, and compare legal guardianship with powers of attorney.

Remember–laws differ by state, and therefore, different states use different terms.  Legal guardian and conservator may be used in different ways in different states, so be sure to look up these terms for your state or talk with your estate attorney about the differences when planning your own estate.  

Relationship between a legal guardian and executor

If you already use Executor.org, then you know you need to meet with your executor to go over things they will need to know about your estate plans.  If you’ve included legal guardianship in your will, tell your executor.

If, in our example, your minor children will also be beneficiaries under your will, the executor will work with the legal guardian in the same way they would work with any other beneficiary and the legal guardian would represent the minor children just as a beneficiary would.  

Similarities and differences between a legal guardian and executor

In some ways, service as a legal guardian named in a will and executor are similar.  In both cases, the will-writer is entrusting you with a very important task.  Ideally, it’s one they’ve talked with you about beforehand.  Legal guardians and executors have legal responsibilities and duties of care.

But there are differences, too.  The time commitment of serving as an executor is limited in scope, but, depending on the situation, service as a legal guardian can be a long-term commitment, even lasting until the death of the individual or the person being cared for.  There may also be financial implications associated with serving as a legal guardian that are different than serving as an executor.  An executor pays for the expenses of an estate out of the assets of the estate, and does not use her personal money for this purpose.  And while it is ideal that a legal guardianship comes with resources for the person being cared for, that is not always the case, and can therefore involve the legal guardian spending their own money when providing care.  

Legal Guardian vs. Power of Attorney

While both legal guardians and individuals holding power of attorney are responsible for making decisions on behalf of another person, there are key differences between the two roles:

• Authority: A legal guardian is appointed by the court over an individual who needs someone to care for them.  Power of attorney is granted through a legal document and does not depend on an individual’s need for care.
• Scope: A legal guardian can have broad control over personal, medical, and financial matters.  Power of attorney can be limited to powers in specific areas such as healthcare or finances.
• Approval and Oversight: Legal guardianship involves appointment by the court and ongoing court supervision, including periodic reporting.  Power of attorney arrangements generally do not require court involvement unless disputes arise.
• Revocation: While legal guardianship can be temporary, in practice, it is usually in place on a more permanent basis, or until a certain criteria is reached (for example, a child reaching the age of majority).  Power of attorney can be put in place for a specific purpose or period of time, and can be revoked easily.  

Conclusion

A legal guardian is a critically important and impactful role that can provide much-needed stability and support to someone in need.  Naming a legal guardian in a will is not a decision to be taken lightly, and you should talk with your estate attorney about your wishes and the responsibilities, legal requirements, and potential challenges so you can ensure the best outcome for those in your care.  

Legal guardianship is just one aspect of estate planning.  Let us help you think through the entire probate process and create a plan that will help you prepare your estate and assist your executor in successfully completing their duties as executor.