Guardianship

Guardianship is the process in which the legal right to care for someone is transferred to another person. Guardianships are closely associated with conservatorships which give a person the responsibility to manage another person’s financial affairs.

When is Guardianship Necessary?

The three most common scenarios for guardianship in Idaho are as follows

  1. An elderly person no longer has the capacity to care for himself or herself.
  2. A special needs person has attained the age of eighteen but cannot assume adult responsibilities.
  3. A minor child’s parents cannot care for a child.

What Do I Need to Do to Get a Guardianship?

Guardianships require approval from a court and courts take this responsibility very seriously. In fact, before a court grants a guardianship, a court must make specific findings that the guardianship is in the proposed ward’s (a ward is the person seeking guardianship) best interest and that the proposed guardian is both willing and capable to care for the person seeking guardianship. Depending on the situation, it is common for courts to order the following things to occur:

Home Visits
An attorney called a guardian ad litem to represent to represent the interests of the proposed ward. This attorney is usually required to make a written report documenting his or her findings and recommendations.

Doctor Evaluations
Idaho courts are careful to grant guardianships in a manner “so as to encourage the development of maximum self-reliance and independence of the incapacitated person and make appointive and other orders only to the extent necessitated by the incapacitated person's actual mental and adaptive limitations or other conditions warranting the procedure.” Idaho Code §15-5-304. Idaho courts take this requirement very seriously. Prior to granting a guardianship, judges carefully review the guardianship paperwork and typically ask many clarifying questions at hearings for guardianship. A hearing is required. Because conservatorship is typically part of guardianship, the paperwork and court hearing will likely deal extensively with the ward’s financial affairs as well.


Special Considerations Related to Guardianships

Avoiding Guardianships of an Elderly Person:

It is possible to avoid guardianship and conservatorship in circumstances relating to the elderly by planning well in advance with a sound estate plan. This can occur when a person places his or her assets in a living trust and designates someone to make financial and medical decisions in financial and medical powers of attorney.

Special Needs Adults Should Have a Guardianship in Place:

Many parents are surprised to find out that they need to obtain guardianship and conservatorship for their special needs children when they reach eighteen years of age. Oftentimes parents will be able to continue in their duties without question, but legally a special needs person is entitled to the same rights as any other adult upon reaching the age of majority. It is important to establish proper guardianship and conservatorship when your special needs children reach the age of majority to ensure parents maintain legal authority and responsibility for things such as directing finances, education, medical care, and living arrangements.

Grandparents with Guardianships of Minors:

Idaho law has multiple resources in place for grandparents (and sometimes siblings or other family members or friends) who are caring for their grandchildren. In some cases grants are available to assist with the financial difficulties associated with caring for grandchildren.

Avoiding Litigation in the Event of the Untimely Death of Parents of Minor Children:

If you and your spouse pass away prior to your children reaching the age of majority you can avoid costly, and sometimes heartbreaking, litigation by simply creating a will or trust designating who should be the guardian of your children in the event of you and your spouses’ deaths. Many people fail to realize the importance of this provision when considering whether to have a will or trust drafted when they are younger and still have children at home.

How Murray & Ziel, PLLC Can Help:

The attorneys at Murray & Ziel have extensive experience in guardianship and conservatorship law. Additionally, we have experience with other legal practices which relate to this area of law which include estate planning, termination of parental rights, adoption, putative father rights, and child custody litigation. We have assisted with guardianship cases throughout Eastern Idaho. We have experience helping people establish and maintain guardianship and conservatorship, defending against termination of guardianships, litigating contested guardianships, terminating parental rights and establishing guardianships or adoptions, and helping people come up with appropriate estate plans dealing with guardianship and conservatorship issues. Our firm handles a significant number of guardianship and conservatorship cases and we have streamlined the process making obtaining a guardianship less stressful for you.