A Guardian is a trusted individual or entity appointed to manage and protect the interests of vulnerable individuals who are unable to fully manage their own affairs. These individuals may include minors, elderly persons with diminished capacity, or individuals with disabilities or for many families key members who are not good with money (you know them). A Guardian acts with fiduciary responsibility, ensuring that decisions regarding the care, finances, and overall well-being of the protected person are made in their best interest. The role of a Guardian requires a deep understanding of ethical principles, legal obligations, trustee law and the specific needs of the individuals they are appointed to protect. Guardians must balance these responsibilities with empathy, fairness, and diligence to safeguard the rights and welfare of those under their care.
When to Use a Guardian
When an individual is a minor: A Guardian is necessary when a child under the age of 18 has no parent available to manage their affairs or when the child has inherited significant assets that require management until they reach adulthood.
When an elderly person is incapacitated: A Guardian should be appointed when an elderly individual is no longer capable of making informed decisions about their own care, finances, or living arrangements due to conditions like dementia or Alzheimer’s disease.
When an individual with a disability cannot manage their own affairs: Guardianship is appropriate for individuals with severe physical or intellectual disabilities who are unable to handle their own financial, legal, or medical decisions.
When there is a need to protect a vulnerable person from exploitation: A Guardian can be appointed to prevent financial or emotional abuse by unscrupulous individuals or family members who might take advantage of the vulnerable person's condition.
When a Special Disability Trust is established: A Guardian may be required to manage a Special Disability Trust, ensuring that the funds are used appropriately for the care and benefit of the person with a disability.
Non-Financial Spouses and Children: It is no secret that families have members who are not financially well versed and also may be easily taken advantage of by associates, a Guardian is a must for these family members, particularly if they are taking responsibility as Executor, Trustee or Appointor of the Trust.
When Not to Use a Guardian
When the individual has the capacity to manage their own affairs: Guardianship should not be imposed on someone who is capable of making informed decisions about their own life, as it can unnecessarily restrict their autonomy.
When less restrictive alternatives are available: If a Power of Attorney, Advance Care Directive, or other legal arrangement can adequately address the individual’s needs, these should be considered before appointing a Guardian.
When the family can effectively manage the person’s needs: If a capable and trustworthy family member is willing and able to manage the individual's affairs without the need for formal guardianship, this may be a preferable option.
When there is a conflict of interest: A Guardian should not be appointed if there is a potential conflict of interest, such as financial gain, that could compromise the integrity of their decision-making on behalf of the individual.
When the individual has already appointed a trusted decision-maker: If the individual has previously established a trusted person through a legal document (e.g., a Power of Attorney), appointing a Guardian may be redundant and could undermine the individual’s autonomy.
Comments