Guardianship is an important part of estate planning. It can protect vulnerable people in your family in the event you become incapacitated or die.
Guardianship is a court-approved legal title that allows a guardian or other person to make decisions on behalf of someone who is unable to do so independently. Although it is most commonly used to provide care for minor children and adults with disabilities, incapacity, or similar situations, guardianship may also be applied to adults.
For minor children, such as a child or grandchild, you will need to name a guardian in your will. This is the person you would like to be legally responsible for your children in the case of your death. A state court might have to appoint a guardian if both parents die without naming one.
You may want to name a guardian if you are suffering from a medical condition that could limit your ability to make future decisions. In some states, adult guardianship may also be known as conservatorship. However, the legal terms can differ in other states.
The pros and cons of guardianship
All-inclusive. Guardianship gives someone the ability to make financial, personal and medical decisions for another person.
Single. Designating a guardian can make it easier to make decisions and lessen conflict.
Restrictive. Guardianship may remove important rights from a person. It can be difficult to reverse.
Indefinite. Guardianship can last as long as the person needs it. This could include until a child is an adult or for a lifetime if they are incapacitated.
What is a guardian?
The primary responsibility of a guardian is to make decisions in the best interest of another person and their assets. Although the circumstances and states of guardians vary, they can make any of these decisions on behalf of someone:
Consent for medical treatment.
Disclosure of confidential information.
Consent for educational and counseling services.
It is important to decide where you want to live.
When and if you should file a lawsuit.
What is guardianship?
Guardianship may be applied to a person, such as a minor or incapacitated person, or to assets. However it is not the same thing as being an executor for a person’s Will .
Guardianship for a child
A state court might have to decide guardianship if you die without a will. This is known as dying intestate. Guardianship in many states is automatically given to the next of kin. This could be grandparents, aunts or uncles, or even adult children.
In some states, like North Carolina, you can ask the court for a guardian to be appointed. However, Georgia allows the child to choose their guardian if they are over 14 years old.
North Carolina Judicial Branch. Guardianship. Retrieved February 16, 2023.
Guardianship for an adult
For adults with certain medical conditions, it may be a good idea to name a guardian to protect their rights in the event they are unable to make their own decisions. Legal guardianship can remove many rights so it is worth looking at other options.
A Declaration of Guardian document can be used to name a guardian. In the event that you are incapacitated, a court hearing may be required to confirm who you have chosen as your guardian.
Guardianship for an Estate
A financial or estate guardian is responsible for managing a person’s assets. This role is usually required when minors inherit property or other assets.
An estate Guardian can be the same person who is a personal guardian or they can be different.
Alternatives for guardianship
Guardianship can permanently take away a person’s rights. It is usually a last resort. In certain situations, there are other options to grant limited powers to people.
These options allow someone to make decisions in best interests of a minor or incapacitated individual without taking complete legal guardianship.
Tax implications for guardianship
Your taxes could be affected by being a legal guardian.
To notify the agency about guardianship, legal guardians might need to file IRS Form 56.
Guardians can usually claim dependents the people they care for, which may allow them to qualify for tax breaks such as the child credit. If the guardian is a minor, they can claim the dependent as a dependent if they provide less than half their financial support. They also must not have lived with them for more than half the year. If the dependent is a student full-time, they can be as young as 24 years.
Guardians who are not eligible for the child credit may still be eligible for a $500 tax credit for a qualifying adult dependent. These are usually adults who are financially dependent on you or permanently disabled.