Guardianship Definitions and Types
Guardianship is a relationship created by state law in which a court gives one person or entity (the guardian) the duty and power to make personal and/or property decisions for another (the ward). Guardianships were designed to protect the interest of incapacitated adults and elders in particular. Specific guardianship terminology varies from state to state. Generally agreed upon terms are provided below:
- A Guardian is an individual or an organization named by the court order to exercise some or all powers over the person and/or the estate of an individual.
- A Guardian of the Person is a guardian who possesses some or all power with regard to the personal affairs of the individual.
- A Guardian of the Estate is a guardian who possesses some or all powers with regard to the real and personal property of the individual (often referred to as conservators or fiduciaries).
Due to the seriousness of the loss of individual rights, guardianships are considered to be an option of "last resort." The court can order either a full (plenary) or limited guardianship for incapacitated persons. Under full guardianship, wards relinquish all rights to self-determination and guardians have full authority over their wards' personal and financial affairs: Wards lose all fundamental rights, including the right to manage their own finances, buy or sell property, make medical decisions for themselves, get married, vote in elections, and enter into contracts. For this reason, limited guardianships—in which the guardian's powers and duties are limited so that wards retain some rights depending on their level of capacity—are preferred.
Courts rely on a variety of types of guardians, including private and professional individuals and entities. Courts prefer to appoint a family member to act as guardian over an incapacitated relative, but it is not always possible to find family members or friends to take on this responsibility. In recent years, an entire service industry of private professional guardians has grown out of the increasing demand for guardians. In addition, most states have a public guardianship program, funded by state or local governments, to serve incapacitated adults who do not have the means to pay for the costs associated with guardianship and do not have family or friends who can serve in a guardianship capacity.