What is the Role of A Guardian in an Estate Plan?

A guardian or guardianship is a common concept in estate planning. A guardian is the person who has the legal authority to care for another person or for the property that belongs to another person.  For financial decisions this position is typically referred to as a “conservator”.  We will use the collect term throughout this post.

A guardian may be necessary or required by law.  For example, in Georgia a minor child cannot own property.  Therefore, under the Uniform Gift for Minors Act, it may be necessary to appoint a guardian for the child’s property. Alternatively, a guardian may be necessary because someone is physically ill or mentally incompetent and does not have the capacity to make decisions for themselves. When someone is appointed to represent the child’s interest in certain custody matters, it is referred to as a Guardian Ad Litem.

The stop of a the guardian’s authority can be broad or narrow. A guardian can be appointed for a limited purpose, such as making a certain type of decision or managing a specific asset.  Alternatively, the authority be for a wide range of decision-making purposes. As stated above, a guardian that makes financial decisions for another person is known a conservator.  The conservator of an estate manages a person’s property in order to maintain or conserve its assets and value.

A guardian can be appoint through various legal documents approved by the state court, or via operation of law.  The guardian for a minor can be named in a Last Will and Testament in the event the legal parents of the minor predecease their children. If you need to care for an elderly or disabled person, you can be petitioned the state court to be named guardian for that person.

The guardian’s power may become effective when the legal requirements for their appointment are met.  For example, when property under your will is left to a minor child.  When the probate court administers the property, the guardian’s authority becomes effective.  The authority of the guardian remains in effect while the person for whom they are making decisions of whose property the guardian controls is still alive.

Jason M. Gordon



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