Guardianship 101

Fri, May 15, 2015


 Some rights reserved by .v1ctor Casale.A guardian is appointed by the court to care for another person when the court finds that someone is no longer able to care for himself or herself. A guardianship can apply to all parts of someone’s life, or just certain areas. Guardianship requires attorney representation for all parties.  The court will appoint attorney representation for the incapacitated adult or the minor child (the Ward). The person seeking guardianship will need to find separate attorney representation.

Guardianship cases typically involve one or more of the following:

  • Elderly adults
  • Mentally incapacitated adults
  • Minor children due to death of their parents
  • Minor children due to inheritance of an estate more than $15,000
  • VA (Veterans Administration) guardianships.


Unlike power of attorney or medical surrogacy, a guardianship requires state court involvement. The Power of Attorney or Health Care Surrogate is done when someone is of sound mind, in advance of a situation of being incapacitated. A guardianship is created after someone has become incapacitated.

Thus, it is important to note that creating some documents prior to becoming incapacitated is often helpful in preventing a guardianship, or cutting out some steps in the guardianship case.  A Durable Power of Attorney can act in ways similar to a guardianship. It might be a preferable arrangement, as the incapacitated person has made the choices themselves instead of being at the mercy of others making decisions for them. To fully substitute for a guardianship, the Durable Power of Attorney should cover health care matters or be created along with a Health Care Surrogacy .

Some types of guardianships are somewhat self-explanatory; however VA Guardianships are not always so crystal clear. VA Guardianship pertains only to those persons who are entitled to receive benefits from the United States Department of Veterans Affairs, which can include a veteran or his or her minor children. It only protects the monies received from the VA and any property acquired from this type of money. VA Guardianship is traditionally less complicated than other types of guardianship related to the protection of incapacitated persons.

It is wise to speak with friends, medical professionals, or other attorneys to help find the best lawyers to interview about taking a guardianship case. Talk to at least two attorneys prior to choosing the one to represent you in a case. Talk about the firm’s typical type of case, their time frame in handling cases, and their success rate in contested guardianships. Fees should also be discussed, including how they are charged. Some attorneys charge by the hour and some by the case, something that could become a key difference if a case takes more time than expected. There are many documents involved in guardianship cases and the length of time they take to draft can be considerable depending on the details involved. This is an important aspect of the case to discuss with potential attorneys as well.

Make sure the guardian is the right type of guardian for the ward. Guardians could be friends, relatives, attorneys, professional guardians, and financial institutions. Sometimes guardians are challenged by relatives or legal professionals, and this can be a complicated situation sometimes solved by mediation.

Attorney Christopher D. Smith, Sr. is designated a Board Certified Consumer Bankruptcy Lawyer by the American Board of Certification.  SmithLaw is located in Lakewood Ranch, Florida.  Attorney Smith concentrates on bankruptcy, civil litigation, probate, estate planning, and elder exploitation cases in the Sarasota and Bradenton area.  Call 941-202-2222 to learn more.  SmithLaw offers free consultations in certain areas, including consumer bankruptcy, probate, and personal injury matters.

Image:  Some rights reserved by .v1ctor Casale.

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