top of page

Guardianships

Guardianship means obtaining the legal authority to make decisions for another person. A “guardian” is the person appointed by the court to make decisions on behalf of someone else. The person over whom the guardianship is granted (the child or the adult) is referred to as the “protected person.”

Types of Guardianships

  • Guardianship over the Person: this type of guardianship means the guardian is responsible for the well-being and care of the protected person. The guardian will be able to make personal and medical decisions for the person, including healthcare decisions, decisions about where the person will live, and in the case of children, decisions regarding school. 

  • Guardianship over the Estate: this type of guardianship allows the guardian to make financial decisions for the person. Court approval is typically needed to spend or sell any of the person’s assets, even after a guardianship is granted. 

  • Guardianship over the Person and Estate: this type of guardianship allows the guardian to make personal, medical, and financial decisions for the protected person. 

Developmentally Disabled

Minors

Incapacitated Adult

Guardianship of a Minor Child

Why Might a Guardianship be Necessary?

Normally, parents have the legal right to make decisions for their children, and adults have the legal right to make decisions for themselves. Sometimes this is not possible, and someone else needs to step in to take care of a child or an adult.

A guardianship may be needed over a child if there is no parent available to care for a child.  A guardian over the child's estate may be needed if the child inherited assets (for instance, life insurance or cash accounts).  This protects the assets until the child is an adult. 

Guardian and/or Conservator

A guardianship may be needed over a child if there is no parent available to care for a child.  A conservator over the child's estate may be needed if the child inherited assets (for instance, life insurance or cash accounts).  This protects the assets until the child is an adult.  We can help you by preparing all of the legal documents necessary to establish either a Guardianship or a Conservatorship, or both, and providing you with step-by-step instructions for approximately $500.00 

Temporary Guardianship by Power of Attorney

Parents can sign a voluntary short-term guardianship to place children in the care of another person temporarily without going to court.  Idaho has two versions of this temporary guardianship called Delegation of Parental Authority.  If the person to be appointed is not a relative, then the short-term guardianship automatically expires six months after the document is signed.  If the person appointed is a close relative, the guardianship can be for up to three (3) years.   The parents and temporary guardian must sign and notarize the agreement.  We can also provide you with this temporary guardianship method.

Guardianship of a Developmentally Disabled Person

Covers a Diverse Group of Conditions

Developmental disability is a diverse group of chronic conditions, comprising mental or physical impairments that arise before adulthood. Developmental disabilities cause individuals living with them many difficulties in certain areas of life, especially in "language, mobility, learning, self-help, and independent living".[1] Developmental disabilities can be detected early on and persist throughout an individual's lifespan. Developmental disability that affects all areas of a child's development is sometimes referred to as global developmental delay.

The most common developmental disabilities are:
Federal Definition of Developmental Disabilities

According to the Developmental Disabilities Act, section 102(8), "the term 'developmental disability' means a severe, chronic disability of an individual 5 years of age or older that:

  1. Is attributable to a mental or physical impairment or combination of mental and physical impairments;

  2. Is manifested before the individual attains age 22;

  3. Is likely to continue indefinitely;

  4. Results in substantial functional limitations in three or more of the following areas of major life activity;

    1. Self-care;

    2. Receptive and expressive language;

    3. Learning;

    4. Mobility;

    5. Self-direction;

    6. Capacity for independent living; and

    7. Economic self-sufficiency.

Reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic services, supports, or other assistance that is of lifelong or extended duration and is individually planned and coordinated, except that such term, when applied to infants and young children means individuals from birth to age 5, inclusive, who have substantial developmental delay or specific congenital or acquired conditions with a high probability of resulting in developmental disabilities if services are not provided."

Substitute Decision-Making

Guardianship is one form of “substitute decision making” – a legal way for one person to make decisions for another person who lacks capacity to make decisions for themself. Just because a person with a disability – even an intellectual disability – turns 18, does not mean that they need a guardian. The majority of people with disabilities live their entire lives without guardians, either making their own decisions or using less restrictive alternatives to guardianship (e.g., natural supports like family, health care representatives for medical decisions, and representative payees for managing social security benefits).

Suspension of  Custodial Rights

A person with a developmental disability or any person interested in his or her welfare may petition for a finding of legal disability or partial legal disability and the appointment of a guardian and/or conservator per Idaho Code, Section 66-404. Since this process will suspend the legal decision making and/or custodial rights of the person subject to guardianship, the court has an obligation to protect that person and insure that guardianship is in their best interest, and will therefore appoint an attorney (called a guardian ad litem) to represent the disabled person in court.  They will undoubtedly attempt to meet with this person, as well as interview yourself and any other persons with relevant knowledge or information.  They will them make a recommendation to the court/judge regarding the legitimate need for guardianship / protection of the disabled person.  

We Can Prepare Necessary Documents

The Petition for Appointment of Guardian (and/or Conservator) must describe the impairments showing the respondent is developmentally disabled, the respondent’s ability to receive, evaluate and communicate information, and the respondent’s ability to manage financial resources and meet essential requirements for physical health or safety.  We can help you by preparing all of the legal documents ready-to-file, necessary to establish Guardianship of a Developmentally Disabled person, and providing you with step-by-step instructions for approximately $500.00 

Guardianship of an Incapacitated Adult

A Guardian to Make Decisions

A guardianship may be needed over an adult if the adult is incapacitated, meaning the person is unable to take care of himself or herself due to mental illness, mental deficiency, disease, or mental incapacity.  There are a number of alternatives to guardianship that may work better than a court-ordered guardianship. 

A Conservatorship May be Necessary

A conservator over the estate of an incapacitated person will likely be needed if they own any titled property or assets.  This places someone to protects and manage the assets for the benefit of the protected person.  We can help you by preparing all of the legal documents necessary to establish a Guardianship and Conservatorship, and providing you with step-by-step instructions for approximately $500.00 

Temporary Guardianship by Power of Attorney

A parent or a guardian of an incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding six (6) months, any of the parent’s or guardian’s powers regarding care, custody, or property of the minor or ward including, but not limited to, powers for medical care and educational care of the minor or ward, except the parent’s or guardian’s power to consent to marriage or adoption of a minor or ward. 

bottom of page