Voluntary vs. Involuntary Guardianship: Key Differences Explained

Voluntary v. Involuntary Guardianship - Michaelson Law

Guardianship may be necessary to ensure your parent or other family member is protected and receives the care they need. There are a lot of layers to guardianship, and our experienced attorneys at Michaelson Law are here to help! We will peel back a layer and share one part of guardianship: voluntary versus involuntary.

What is Guardianship?

Guardianship involves a court-monitored procedure where one assumes legal responsibility for an individual’s well-being or financial affairs when the individual becomes incapable of managing these matters. The guardianship role can be appointed voluntarily or involuntarily and applies to both adults and minors. The Nevada court will determine whether the adult protected person or protected child is of an age and capacity to make decisions based on current circumstances.

Voluntary Guardianship

A mentally competent individual can appoint someone as their guardian. The court may or may not be involved in this process. When courts are not involved, the guardianship is typically only valid for six months and must be renewed after that period. When the courts get involved, guardianship can continue until it is no longer needed.

Alzheimer’s is an escalating issue in the United States. Opting for voluntary guardianship enables an individual to select their preferred guardian well before Alzheimer’s progresses and requires the appointment of a guardian.

Involuntary Guardianship

When involuntary guardianship is involved, it means the prospective protected person, or ward, is unable to make decisions on their behalf. The individual looking to become a guardian must formally ask the court for authority over the individual they intend to protect.

For adult guardianship, this involves demonstrating that the individual in question cannot manage their well-being, usually backed by medical or psychiatric evaluations indicating their incapacity. In the case of minor guardianship, the prospective guardian needs to establish that the child’s current caregivers cannot provide adequate care. Adequate proof is necessary to establish involuntary guardianship and can be supported in various ways, such as CPA reports, police records, and personal accounts.

Significant Differences

Restrictions

Voluntary guardianship is much less restrictive than involuntary guardianship. The ward’s autonomy is respected to a greater extent, and their guardian’s authority is typically limited to where the ward needs most assistance. In involuntary guardianship, the guardian has a greater say in various aspects of the ward’s life, including medical treatment, financial matters, and living arrangements.

Revocability

With voluntary guardianship, the ward entered the arrangement willingly, so they often can terminate or modify the guardianship if their circumstances change or if they regain the capacity to make decisions independently. Involuntary guardianship can be harder to end or modify, as it requires demonstrating to the court that the ward’s restored capacity or the conditions that led to the established guardianship have changed significantly.

Legal Process

Involuntary guardianship usually involves a legal process where a court determines the need for guardianship based on evidence provided by medical professionals, family members, or other concerned parties. A court is not always required to establish voluntary guardianship. Still, when the court is not involved, the guardianship is typically only valid for six months before it needs to be renewed, while court-appointed voluntary guardianships last until it is no longer needed.

Experienced Guardianship Attorneys

It’s best to consult a guardianship attorney to ensure you choose the right type of guardianship for your loved one. No matter the type of guardianship needed, our experienced attorneys at Michaelson Law are here to guide you in the right direction, ensuring your and your loved one’s health, safety, and happiness. Contact Michaelson Law to discuss your family’s needs today!

Request a Legal Consultation

Need to speak with someone right away?
Call