There are two types of guardians, guardian of the person and guardian of the estate. The same individual can be both guardian of the person and guardian of the estate or two separate individuals can fulfill these separate roles.
A guardian of the person makes health care, general welfare, educational, and life-style decisions for an incapacitated person. The person may be incapacitated due to age (minors do not have legal capacity), ailment, or level of mental functioning.
On the other hand, a guardian of the estate handles the money. Thats the individual who is responsible for paying bills, managing assets, and investing assets.
If proactive estate planning is done:
- Guardians for minor children are named in a will.
- Powers of attorney (finances and health care) are in place.
- Disability trustees and beneficiary trust trustees are in place.
- All of these helpers have been asked and agreed to serve.
- Contingent helpers have been named in case the primary helpers are unable or unwilling to serve.
- Estate planning documents are up-to-date and in accordance with current law and current goals.
- Estate planning documents are available to helpers when needed.
- Helpers know how to contact the estate planning attorney for help.
If reactive estate planning is required:
- The court must be petitioned.
- The court will appoint guardians of the person and of the estate.
- The court will continue to supervise the guardianship.
- There are ongoing fees and reporting requirements.
Use your will to name guardian of the person for your minor children; if an adult is or becomes incapacitated, petition the court to have a guardian named, unless the proper estate planning documents are already in place.