What is Guardianship?

As experienced estate planning attorneys, we understand that life can be unpredictable, and the need to protect our loved ones is paramount. One way to ensure that your family members are taken care of in the event you are unable to do so is by establishing a guardianship. This legal arrangement allows a designated person, known as the guardian, to make critical decisions on behalf of another individual, known as the ward. In this article, we will discuss the concept of guardianship, its types, the process involved, and its limitations. 

Don’t wait to protect your loved ones. Call BKBH today to schedule a consultation with our experienced estate planning attorneys, and let us guide you through the guardianship process.  

What Types of Guardianship Can Be Established in Montana?

Guardianship is a legal relationship in which a court-appointed guardian is responsible for managing the personal, financial, or medical affairs of an incapacitated individual or a minor. This legal arrangement is necessary when a person is unable to make decisions for themselves due to mental or physical disability, age, or illness. The guardian’s primary role is to ensure the ward’s well-being and act in their best interest. 

There are various forms of guardianship, which can be established depending on a ward’s specific needs: 

• Limited Guardianship. A limited guardian has specific, court-defined responsibilities and decision-making authority for the ward. This type of guardianship is often used when the ward can manage some aspects of their life but needs assistance in certain areas. 
• Full Guardianship. A full guardian has complete authority to make decisions on behalf of the ward in all areas of their life, including personal, financial, and medical decisions. This type of guardianship is typically granted when the ward is completely incapacitated and unable to make any decisions for themselves.2 
• Temporary Guardianship. A temporary guardian is appointed for a specific time frame, often due to an emergency or a specific circumstance. Once the emergency is resolved, or the situation changes, the guardianship can be terminated.3 
• Guardian of the Estate. A guardian of the estate is responsible for managing the ward’s financial affairs, including assets, income, and expenses. This type of guardianship is typically established when the ward is unable to manage their financial matters. 
• Guardian of the Person. A guardian of the person is responsible for making decisions related to the ward’s personal care, including medical treatment, housing, and daily activities. This type of guardianship is often established when the ward is unable to make decisions about their personal well-being. 

Limitations of Guardianship

While guardianship is an essential tool for protecting vulnerable individuals, it is not without limitations. In certain situations, less restrictive alternatives, such as a Health Care Power of Attorney (HCPOA) or a financial power of attorney, may be more appropriate. These documents allow an individual to appoint an agent to make decisions on their behalf in the event of incapacity. Unlike guardianship, the individual retains their legal rights and independence, and the process is typically less time-consuming and costly. 

However, there are some limitations to the authority granted by a HCPOA. For example, in Montana, your agent cannot authorize the withdrawal or withholding of life-sustaining treatment unless you explicitly provide them with that authority in the document. This limitation underscores the importance of working with experienced estate planning attorneys, such as those at BKBH, to ensure that your wishes are accurately and comprehensively documented. 

Additionally, guardianships are subject to ongoing court supervision. Guardians are required to file periodic reports detailing the ward’s well-being and the management of their financial affairs. While this oversight provides a layer of protection for the ward, it can also be time-consuming and burdensome for the guardian. 

Termination of Guardianship

A guardianship may be terminated in Montana under various circumstances, such as: 

• The ward regains capacity. If the ward’s condition improves and they regain the ability to make decisions for themselves, the court may terminate the guardianship. 
• The ward passes away. Upon the ward’s death, the guardianship is automatically terminated. 
• Resignation or removal of the guardian. A guardian may resign or be removed by the court if they are unable or unwilling to continue serving in their role, or if they are found to be acting against the best interests of the ward. In such cases, the court may appoint a new guardian.4 

Call BKBH Today to Schedule A Consultation With An Experienced Montana Guardianship Lawyer.

Guardianship is a crucial legal tool that provides protection and support for individuals who are unable to make decisions for themselves. However, it is essential to work with experienced estate planning attorneys to navigate the complex guardianship process and explore less restrictive alternatives, if appropriate. 

At BKBH, our estate planning attorneys have extensive experience in helping families establish guardianships and other protective measures to ensure the well-being of their loved ones. We understand the importance of safeguarding the interests of vulnerable individuals and are committed to providing compassionate, personalized legal guidance throughout the guardianship process. Contact us today to discuss your guardianship needs and learn more about how we can assist you in protecting your loved ones.