JONATHAN D. MORTON

Partner

TONI F. ESPARZA

Associate

LEYNEE CRUZ FLORES

Partner

GCT Answers Frequently Asked Questions About Guardianship

April 28, 2023

Guardianship may be necessary if a person is unable to make and/or communicate their own responsible decisions regarding their care or finances due to a mental, physical or developmental disability.

The guardianship process can often be difficult and confusing to navigate. Golan Christie Taglia’s guardianship attorneys provide personalized counsel to guide families through this process as smoothly as possible.

1. What are the different types of guardianship?

There are two main types of guardianship that can be tailored to each situation based on the needs and capabilities of the disabled person.

“Guardianship of the Person” is utilized when a disabled person is unable to make or communicate decisions regarding their personal care. A Guardian of the Person is responsible for making decisions surrounding the disabled person’s medical treatment, residential placement, social services and other related issues.

“Guardianship of the Estate” is utilizied when a disabled person is unable to make or communicate decisions regarding their financial care. A Guardian of the Estate is responsible for making decisions surrounding a disabled person’s finances and safeguarding of their income or other assets.

These guardianships can either be limited, when the guardian is allowed to make only personal care/financial decisions specified by the court, or plenary, when the guardian is allowed to make virtually all decisions for the disabled person.

2. What are the requirements to become a guardian?

To become a guardian, one must be at least 18 years old, a resident of the United States, not been convicted of a serious crime and be of sound mind.

A person is not automatically named the legal guardian of a disabled relative by virtue of blood relation. In every case, the court decides whether guardianship is necessary and who is best suited to serve as a guardian. The disabled person can express a preference for who their guardian is, but ultimately the Judge will make the decision based on whoever will act in the disabled person’s best interests.

3. How can a guardianship attorney help my family?

We encourage seeking legal counsel for help moving through the guardianship process. GCT’s guardianship attorneys are able to assist in all areas of the process, including:

  • Opening and closing the guardianship, both for minors and disabled adults
  • Representation of the guardian of the estate, the guardian of the person or the guardian ad litem
  • Preparation and presentation of accountings and inventories
  • Reimbursement of expenses
  • Powers of Attorney
  • Working with banks to manage and distribute assets
  • Identification and adjudication of adult disability

4. What is a special needs trust?

A special needs trust allows money to be set aside for a person who has disabilities for them to later inherit. This money does not disqualify them from receiving public aid benefits, like Medicare. Special needs trust can be especially important if the person with disabilities is in or will be in a group home setting.

5. My child, who is over 18, has autism and requires assistance. What are my options?

If your adult child has autism and requires assistance, there are several guardianship options. Because they are no longer a minor, a parent needs to be appointed legal guardian in order to make decisions for them.

If your child needs assistance only with certain tasks, such as financial or complex medical decisions, limited guardianship may be the optimal choice. On the other hand, if your child requires assistance with most of their personal and financial decisions, you may consider a plenary guardianship.

For experienced and personalized legal counsel regarding guardianships, reach out to Leynee Cruz Flores, Toni F. Esparza, or Jonathan D. Morton.

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