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Guardianship - Background Information

What is a guardianship?

Guardianship is a legal arrangement where the court appoints a person or institution as a guardian to make decisions for an incapacitated person or a minor child -- decisions about housing, medical care, legal issues, and services. The individual being cared for is called the “ward.”

In 2004, the Legislature changed the law so that a full guardian of an adult automatically has the powers of a conservator. Before 2004, it was necessary to get two appointments, one for a guardian and one for a conservator. While a person appointed as guardian may also be appointed as conservator, a separate conservator can be appointed.

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What is a guardian?

A guardian is a person the court appoints to manage the affairs of another person, called the ward. A guardian has authority to make personal decisions for the ward, such as where the ward will live and under what conditions. A guardian may also manage the finances of the ward if the court has not appointed a separate conservator (someone to manage the ward’s money and property).

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How is a guardian different than a conservator?

A full guardian has more powers than a conservator because the conservator only manages the financial affairs for another person. The guardian can make personal decisions for the person regarding housing, care, health, legal rights plus finances decisions.

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Why would I file for guardianship?

If you are concerned that a family member or friend cannot take care of him/herself and manage their daily living responsibilities (cooking, eating, bathing, getting healthcare, managing money and property), you may consider filing a petition for guardianship.

The court may appoint a guardian if the person is incapacitated and the services of a guardian are necessary. A person is incapacitated if his or her ability to receive and evaluate information or communicate decisions is so impaired that the person cannot take care of his or her own physical health or safety (meaning provide the healthcare, food, shelter, clothing, etc. the person needs to avoid serious physical injury or illness).

If you think the person cannot manage their money but is otherwise able to take care of him/herself, you may consider filing a petition for conservatorship.

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What powers does a guardian have?

A guardian has nearly the same powers and duties to the ward as a parent does to a minor child. However, the guardian does not have to use his or her own money to pay for the ward’s care, and the guardian is not personally liable for harm done by the ward. Although the guardian has the authority to make decisions regarding the ward’s care, if possible, you should discuss decisions with the ward, members of the ward’s family and care providers. This will help avoid misunderstandings. The guardian has many powers and duties that include, but are not limited to, the following:

Learn more at Powers and Duties of a Full Guardian of an Adult PG-510 Adobe Acrobat PDF logo

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What powers does a guardian have about housing?

The guardian must decide where the ward will live, allowing the ward to participate in the decision-making as much as possible. The guardian must consider the ward’s wishes about where to live. The guardian must choose the least restrictive setting that protects the ward. To allow the ward to remain in the ward’s home as long as possible, you may need to investigate available services to help the ward – services such as providing meals, housekeeping, running errands, adult day care, periodic nursing care, ways the ward can contact help in case of a fall or other emergency, etc. The guardian cannot place the ward in a facility or institution for the mentally ill except by filing a formal commitment proceeding. See Mental Commitment Forms.

In the guardian’s appointment order, the court may require that the guardian get the court’s permission before moving the ward.

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What powers does a guardian have about care, comfort and maintenance?

The guardian must make sure that the ward is cared for and provided with food, clothing, personal hygiene assistance, transportation, social and recreational opportunities, etc.

The guardian should visit the ward regularly to make sure the ward is being cared for and answer any questions the ward has about the ward’s care. If the ward needs assistive devices like a hearing aid, glasses, dentures, etc., try to arrange for the ward to get them.

Make sure that appropriate programs and activities are provided for the ward. Contact local agencies to find out what is available.

Figure out what the ward likes to do, and try to make it possible for the ward to do it.

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What powers does a guardian have about health and safety?

The guardian must make sure the ward receives health care (including mental health care) and protection. The guardian should arrange for any physical and mental examinations necessary to determine the ward’s medical and mental health treatment needs. This includes dental, hearing and eye exams. The guardian may consent to medical care, counseling, treatment or other services for the ward.

However, the guardian cannot consent for the ward to:

The guardian must also make sure the ward receives services to take care of himself or herself as much as possible. This may include educational and vocational services.

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What powers does a guardian have about the ward’s rights?

The guardian must make sure that the ward’s personal, civil and human rights are protected by filing lawsuits or taking whatever other action is necessary. The ward retains all legal and civil rights except those that the court has expressly limited or specifically granted to the guardian.

The ward has the right to ask the court to dismiss the guardian or modify the guardianship order. The guardian and other interested parties can also ask the court to review and modify the order.

The guardian cannot:

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What powers does a guardian have about finances?

The guardian has the powers and duties of a conservator (unless a separate conservator has been appointed). That means the guardian or conservator is responsible for managing the ward’s money and property and using those assets to provide the ward’s care (and for any dependent of the ward).

The guardian or conservator must apply for any benefits to which the ward is entitled. That may include health and accident insurance benefits and other private or governmental benefits that would help pay any of the costs of medical, mental health or other services provided to the ward.

The guardian or conservator must:

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What is the difference between Full, Temporary, Partial, Limited, or Testamentary Guardianship?

A full guardian is appointed to have total decision-making responsibilities for the respondent regarding medical, housing, services, legal, and financial areas (if a separate conservator has not been appointed). See the Adult Guardianship Petition Packet, PG-500:

See also Powers and Duties of a Full Guardian of an Adult, PG-510 Adobe Acrobat PDF logo.

A temporary guardian is appointed to have authority to provide emergency services necessary to protect the respondent from serious injury, illness or disease for an immediate or time-limited period. An example would be an emergency appointment for an immediate life threatening medical decision. If the judge signs an emergency appointment order, the order will be temporary and will permit the guardian only to provide the needed assistance. It will expire when the court appoints a regular guardian or dismisses the petition for appointment of a guardian. See the Emergency Petition Packet- Adult Guardianship, PG-520:

A partial or limited guardian is appointed whose rights, powers, and duties are less than full guardianship and are specified by court order. In these situations, the respondent is able to perform some, but not all of the functions necessary to care for himself/herself and alternatives to guardianship cannot provide for the respondent’s needs. See the Partial Guardianship Packet:

A guardian by testamentary appointment is appointed by a will. An example would be when a parent / guardian of a developmentally disabled child indicate in his or her will which other person would be the child's successor guardian. The successor guardian needs to request a Probate Court hearing to get signed Orders. See the Guardianship Packet for Guardian of Minor Appointed in a Will, PG-650:

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Who can be a guardian?

Almost anyone (except a minor) willing to take on the responsibility can be appointed. The guardian can be a spouse, relative, friend, a private professional guardian, or the public guardian.

There is a preference in Alaska law for the appointment of a family member or a friend as the guardian. When a family member or friend is not able or willing to be the guardian, the court will appoint a private professional guardian, or the Public Guardian. A private professional guardian will provide these services for a fee, usually charging on an hourly basis. Sometimes the person needing a guardian will not be able to pay a private professional guardian. In those cases, the court can appoint the Public Guardian at the Office of Public Advocacy who charges fees based on a sliding scale.

The guardian cannot be someone who

  1. provides substantial professional or business services to the incapacitated person,
  2. is a creditor of the incapacitated person,
  3. has interests that may conflict with those of the incapacitated person, or
  4. works for a person who would be disqualified under Nos. 1-3.

These restrictions do not necessarily apply to the respondent’s spouse, adult child, parent, brother or sister if the court determines that potential conflict of interest is not substantial and the appointment would clearly be in the best interests of the incapacitated person.

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Can there be co-guardians?

The court can appoint co-guardians who are two different people who agree to be guardians. Usually the co-guardians are required to make decisions together about the ward and both sign financial documents about the finances, unless the appointment specifies that each co-guardian can make decisions or sign documents separately. Both co-guardians have to meet the education requirement.

The co-guardians should have excellent communication and trust each other because they need to work very closely together to make decisions in the ward’s best interests.

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When can the court appoint a guardian?

The court can appoint a guardian only if determines that a person:

AND

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What are alternatives to guardianship?

There may be options instead of going to court for a full guardianship. Consider:

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Does the person who is the subject of the guardianship need to live in Alaska?

Generally, the person whom you think needs a guardian should be physically present in Alaska for at least the last six months for the Alaska court to have jurisdiction or authority to do a guardianship case. If this is not the situation, there are exceptions when the Alaska court may have jurisdiction. You should talk to an attorney to see if Alaska is the appropriate court for the guardianship case or whether you need to file the case in another state.

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Does the guardian need to live in Alaska?

The guardian does not need to live in Alaska. By accepting the appointment as the guardian, you agree that the Alaska court has authority over you as the guardian.

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Can the court appoint a guardian for my minor child?

The court may appoint a guardian for a minor child that can be valid until the child’s 18th birthday if:

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Can I be the guardian for my disabled child when he/she turns 18?

If you are the parent of a disabled child who will be turning 18 in the near future, you may need to consider adult guardianship. A child who is 18 or older is considered an adult, regardless of the presence of a disability. The child’s parents no longer can make medical, legal and financial decisions for the child unless the court appoints the parents as guardians. Adult guardianship is a legal process and the court must find that a person is incapacitated to appoint a guardian.

If you question whether your son or daughter meets the legal definition of incapacity and needs a guardian when he or she turns 18 years old, you may want to consult with other professionals working with your child, especially the medical doctor, for their opinion. Remember that while you may petition for appointment of a guardian, a judge makes the final decision with input from the medical expert and the court visitor. In addition, the court will appoint your child an attorney to represent the child's express wishes or a guardian ad litem if your child is not capable of understanding the process or participating in the attorney client relationship.

Make sure to plan ahead when deciding to file a petition for guardianship because it can take approximately four months for the court to schedule a hearing; it is a good idea to file the petition when your child is approximately 17 3/4 years old.

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What is the difference between having custody or guardianship of a minor child?

When the parents cannot care for their child, often a grandparent or another family member takes care of the child. The caregiver may decide whether to go to court to file either a custody case or a guardianship case. If the court awards someone custody or guardianship, the caregiver would stand in the shoes of the parents and make decisions about the child. However, there are different standards for both types of cases and different requirements after the court makes the decision.

Non-parent custody

If the parents agree to have the non-parent take custody of the child and the court finds the custody arrangement in the child’s best interests, the court can award the non-parent custody.

If the parents do not agree for the non-parent to take custody of the child, the non-parent and the parents will have to argue their case in court. Alaska Supreme Court cases have recognized that a parent is entitled to a preference over non-parents in custody determinations. A court can override this preference if:

When the court awards a non-parent custody of a child (this person is the “custodian”), usually the parents will have to pay child support to the custodian. If something changes later and the parents want the child back in their custody, they will have to show a substantial change in circumstances to modify the custody arrangement in court (unless the custodian agrees to return the child).

If you are interested in filing for custody of a child, you should consult with an attorney to understand what is involved in this type of case. You can call the Family Law Self-Help Center telephone helpline and the staff may have forms to help you depending on the specifics of your situation.

Minor guardianship

A guardianship of a minor child can happen when both parents agree using court forms. Guardians must file a plan and reports at required times. The parents can revoke the guardianship and take the child back from the guardian. If the parents do not agree about the guardianship, they should consult with an attorney to discuss what to file.

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How is a delegation of parental powers different from a guardianship?

You can delegate any powers regarding care, custody or property of your minor child, except the power to consent to marriage or adoption for up to one year. You can specify what powers the person has regarding the child’s care, custody or property. The parent signing the delegation of powers document only affects their own rights, but not the non-signing parent’s rights. The signing parent can revoke the delegation of powers at any time. You do not go to court for a power of attorney; it is a document you sign out of court. There is no formal reporting required about the actions you take if you have a delegation of powers. This delegation of parental powers is done through a limited power of attorney document:

Delegation of powers is not a guardianship. If you need someone to take care of your child for more than 1 year or want someone else to have full powers to raise your child, you can petition the court for a guardianship. There is a court process to become a guardian as well as reporting requirements after being appointed.

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How does a Power of Attorney differ from a Guardianship?

A Power of Attorney is power granted to another person to conduct any business that a person could do himself, such as banking, deal with real estate, pay taxes, make business transactions, or any other issue. Powers of attorney are often time-limited. The person granting the power of attorney must have capacity to make that decision and there is no court oversight. The person who has granted the power of attorney may withdraw it at any time. The court is not involved.

You can watch short presentations about:

A guardianship occurs when the court appoints a guardian after a legal process to become a guardian. because the person cannot make decision for himself or herself due to legal incapacity. The guardian is required to file reports with the court after being appointed. A guardianship generally takes priority over a power of attorney.

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Does the guardian get paid?

The guardian can be paid from the ward’s money for the guardianship work, but only with a written court order. Also, if the guardian or the guardian’s spouse, parent or child is going to provide room and board for the ward, the guardian must get written permission from the court before using the ward’s money to pay for this.

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Where can I get more information about adult guardianship / conservatorship?

If you have questions about adult guardianship in general, you can call the Family Guardian Program at (907) 269-3525, messages are checked weekly. You can also e-mail them at family.guardian@alaska.gov. For instance, if you are uncertain what level of protection might be appropriate, they can help you explore other options, including Social Security Representative Payees, a process that does not involve the court.

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Rev. 6 December 2017
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