There are many forms of representation that residents may need to use if they are unable to make their own choices. But, understanding the various types is key to the estate planning process.
The most commonly understood version is guardianship. A probate court can appoint a guardian to be the decisions maker for an adult or child, known as a ward in the probate process. For a child, the guardian is appointed when their parents or legal guardians die or lose their ability to take care of the child. For an adult, the appointment of a guardian is done when the adult loses the capacity, or a sufficient capacity, to communicate or make decisions about significant life decisions, like those that affect their health and safety. A guardian’s duties and power are similar to that of a parent, but for an adult, they extend only to the adult’s actual impairments to ensure that the adult’s rights and dignity are protected to the maximum extent possible.
A discussion of adult guardianship has to include a discussion of conservatorship as a guardian and conservator can be the same or two different people. While a guardian serves much like a parent, making decisions for an adult who cannot, a conservator simply manages the adult’s property.
Similarly, in some legal processes, a child may be appointed a guardian ad litem by a probate court or family court. This is a person appointed by the court to represent the best interests of the ward in family and probate cases. They are responsible to make recommendations to the court after reviewing the factual situations of cases and the parties therein. They help the court ensure that a child’s best interests are protected.
While these roles may seem confusing, there are other third-party representatives that are important to the estate planning process. For example, a representative payee is a person appointed by the Social Security Administration. That person can accept benefits for the SSA beneficiary to care for that beneficiary. There is also a personal representative (category of persons in the estate process, like executors, administrators, etc.), power of attorney (an agent appointed to make business and financial decisions), responsible party (the contact person for someone in a long-term care facility), etc.
As readers can likely see, this can get complicated. This is why it is so important to contact an estate planning attorney or expert when drafting estate planning documents.
