A guardianship is a tool that authorizes one person to make decisions for another who cannot manage his/her own affairs due to age (a child) or lack of understanding or self-control. A court appoints a guardian, based on a petition from a family member or an interested party. Then the guardian has the duty and right to act on behalf of the person with a disability. The person with the disability is subject to the guardian even if he or she objects to the court order.
Guardianships are often used if a child’s parents die, if a person has a mental or physical disability or if an adult cannot speak for himself/herself due to an illness or accident.
While a judge can make the guardianship limited and allow the person with the disability to make certain decisions and require the guardian to make others, the powers of a guardian can be extensive. They can make decisions about where the person with the disability will live, what health care will be provided, what education he/she will receive, and how his/her money will be spent.
An estate planning attorney can counsel you and prepare a plan for you to manage your medical care, finances or business if you cannot. This means you avoid the court-ordered guardianship in favor of wishes you state in a trust or with a Power of Attorney. Trusts are more flexible than court-ordered guardianships or Powers of Attorney and allow you to control who will make decisions for you.
Estate planning is the ideal way to create a guardianship for a child with special needs who is over the age of 18.