There are two types of guardianship when it comes to estate planning: guardianship of the person and of the estate. Both are important when it comes to creating a comprehensive estate plan. 

 

Guardianship of the person:

This type of guardianship applies to minor children and incapacitated adults. The appointed guardian has the authority to make personal decisions for the specified individual, such as medical treatment, education, living arrangements, and other non-financial decisions. 

 

Guardianship of the estate:

Also known as a “conservator,” a guardian of the estate has the authority to make financial decisions such as manage bank accounts and investments, pay bills and taxes, and buy or sell property. A guardian of the estate has a legal and ethical duty to act in the individual’s best interest and be transparent in their actions. 

 

Can one person fulfill both roles?

Technically, yes, a single person can be both a guardian of the person and of the estate. However, there are some important considerations that should be taken into account before naming a single person to fulfill both roles.

• Potential conflict of interest: Managing both personal and financial decisions for an individual could lead to a conflict of interest. 
• Workload capacity: Depending on the situation, managing both the financial care of a minor or incapacitated adult could be too demanding for one person to handle.
• State laws: Some states have specific laws and limitations about dual guardianship roles.
• Complexity of the estate: Large and complex estates may be better suited to a financial professional, who is likely not the best candidate for personal guardianship.

 

When to consider separate guardians:

Family dynamics and the potential for conflicts within a family are a big reason for dividing the roles to prevent disagreements that might degrade the level of care and attention given to the individual. 

 

Geographic distance is another consideration. Will children or the guardian be forced to relocate to fulfill their duties? 

 

The court will appoint guardians if you don’t.

If you do not name a legal guardian, the court will appoint one for you. For married couples, the court will typically appoint the surviving parent (regardless of your marital status). If the parent isn’t able to fulfill the role, the court will move to other family members before resorting to foster care. 

 

The best way to ensure your minor child or other dependent goes to the guardian of your choosing is to name both a guardian of the estate and of the person in your estate plan. Never assume that the court will go with your wishes if you do not have a formal appointee in place. 

 

The experienced attorneys at Wills & Wellness Estate Planning can help you with guardianships.

There are a lot of considerations when it comes to guardianships, and we can help. Contact us today for a free consultation.