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If you become incapacitated so that you can't make financial and other decisions, a court will usually appoint a person known as a guardian to make decisions on your behalf. This article will help you understand the implications are of having a court-appointed guardian.

While you may be reading this article because you have a health condition, everyone should think about, and make arrangements for, the possibility of becoming incapacitated.

There are other alternatives for taking care of you and your affairs in case you become incapacitated, such as a Durable Power of Attorney, use of a trust (including a Revocable Living Trust) or a separate entity such as a corporation or limited liability company.

What Is A Guardianship Or Conservatorship?

A guardianship is a legal arrangement in which an adult (called a "guardian" or "conservator") has the court-ordered authority and responsibility to make personal and/or financial decisions on behalf of another person.

Depending on your ability to make your own decisions, as determined by the court, a guardian may be given complete or only partial power over your affairs. For example, a decision to place you in a long-term care facility may be one decision to be made by a guardian, but you might still have a say about the type of facility in which you want to live.

The person who has a guardian may be called a "ward," an "incapacitated person," or a "conservatee."

How Does A Court Decide If A Guardian Is Needed?

There is no single test for mental capacity in each state. However, in general:

  • Incapacity is evaluated in connection with specific tasks. The question is usually: incapable of doing what?
  • Different legal standards of capacity usually apply to different tasks. For example, the capacity to execute a Will may be different from the capacity to drive or to make medical decisions.

Typically, a three-part test is used to determine incapacity:

  • There must be some type of disability.
  • There must be a finding that the disability prevents the person from performing activities essential to take care of his or her personal needs or property.
  • There are no workable alternatives to guardianship.

How Is A Guardian Appointed?

Generally, a court will appoint a guardian after hearing evidence that a person is incapable of making decisions. Judges generally appoint an “evaluator,” a person to evaluate the situation and report back to the court.

In many states, you can apply to have a guardian appointed on a pre-need basis. For example, if you face incapacity and do not have someone you trust to appoint as an attorney-in-fact under a durable power of attorney. In this situation, the guardian is called a “pre-need” guardian.

If the court is asked to appoint a guardian by someone else, and you don’t think you need a guardian, you can fight the attempt to have one appointed. In most states, you will have the right to be present at a hearing about the matter and to be represented by a lawyer. If you can’t afford one, many states require that the court appoint one at the state’s expense.

How Does The Court Choose A Guardian?

Judges have discretion to appoint almost anyone as a guardian. The court may also appoint multiple guardians who share or split responsibilities.

If you suggest a choice: If you execute a pre-need designation of guardian which specifies your choice for a guardian, the courts don't have to abide by your choice. However, if the person seems suitable and there are no objections, it's likely the court will follow your wishes.

If your state doesn't allow a pre-need designation, you can still write a letter that lets the court know your preference. Keep the letter with your other important documents.

Family and friends: If someone notifies the court that he or she is interested in taking on the role, that person will usually be appointed guardian if the court believes the person is suitable.

If several of your family members or friends all want the job, the judge will usually choose among them. In most states, preference will usually be given first to your spouse, then to your adult children, adult siblings, and other blood relatives.

If no family or friends offer to serve as guardian: The judge may appoint a lawyer or a public or private agency to serve as guardian -- and charge fees which will be paid from your assets. This arrangement will both drain your finances and result in having someone manage your assets who has little or no interest in you personally.

Your close family members and friends can object to the conservatorship itself or to the choice of guardian.

If you want to choose a guardian, see Choosing A Guardian.

Who Pays For A Guardianship?

Your assets will be used to pay the court charges, attorney fees, and the guardian’s fees.

Family members who serve as a guardian do not have to be paid. However, they can choose to seek compensation for being a guardian by making a request to the court.

Depending on where you live, an uncontested guardianship can cost between $1,500 and $3,000. or more.

What Are The Pluses And Minuses Of Having A Guardian?


A guardianship can provide for the management of your assets if there is no one you can entrust with a power of attorney.

  • A guardian is subject to court supervision.
  • Guardians must have court approval to perform certain actions such as selling property.
  • A court-appointed guardian is subject to more limitations than an attorney-in-fact is under a Durable Power Of Attorney.
  • Guardians normally must file accountings annually with the court.


Some of the downsides to having a guardian are:

  • Loss of individual rights: Among other rights, you may lose the right to marry, vote, hold a driver's license, make a Will, or enter a contract.
  • Cost: Guardianships can be very costly. The cost of the guardian's services, annual accountings, and all court fees will be paid from your assets.
  • Public court proceedings: Court proceedings and documents involved in a guardianship are part of the public record. For many people, the exposure of personal records in court is embarrassing. For the incapacitated person's relatives and friends, the court proceedings can be emotionally trying as well.
  • Inflexibility: The guardian's ability to manage your estate is generally not very flexible because of court supervision and the fear of being sued about the outcome of a decision.

When Does A Guardianship End?

A guardianship ends when the court enters a decree terminating the guardianship. This will ordinarily happen when:

  • You regain the ability to handle your own finances.
  • Your assets are used up if the guardianship only relates to your finances.
  • You die.
  • If the guardian becomes unable or unwilling to handle your finances. A new individual or agency can also replace him or her.