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 What Is Guardianship?

Guardianship is the legal process that protects those who cannot care for themselves, such as children and mentally or physically disabled adults. When needed, a probate court judge will appoint a legal guardian to care for someone who needs special protection (called a “ward”).

Legal guardians are given the authority to make decisions for the ward’s personal, medical, and financial interests. States differ on the process and requirements for appointing a guardian, but all courts focus first on whether a guardian is truly needed. Courts are reluctant to order guardianships for adults because guardianship (in some states, the “conservatorship”) robs them of many opportunities to care for themselves and to make important decisions.

An example: an elderly parent becomes mentally incapacitated and unable to make personal, medical, and financial decisions on their own. Their adult child, or a set of their children, could seek to become guardians.

Another example: Parents have natural legal guardianship of their children. Usually, a parent stops being their child’s legal guardian when they turn 18. However, the child may have a disability that renders them incapable of caring for themselves, and the parent might seek to extend their child’s guardianship into adulthood.

What is a Contested Guardianship?

A contested guardianship refers to a situation in which a guardian’s services are called into question. Someone is convinced that the legal guardian is not fulfilling their role appropriately. Perhaps it’s argued that the guardian has failed to provide basic living necessities for the ward, who is a child and cannot feed or house themselves. Or, it may be charged that the guardian has taken money from the ward’s funds for the guardian’s personal use.

The person who is worried about the situation cannot sue the guardian directly because it is not the complainant who is being hurt, so that person can’t go after the guardian (unless the complainant convinces the court to remove the problematic guardian, then steps in as the new guardian, and then – in the new role of protector of the ward – sues the former guardian). What can be done is to remove the troublesome guardian.

Of course, guardianship could also be contested by friends or family members who believe the ward did not need a guardian.

What are Some Types of Guardianship?

There are many different types of guardianship relationships. The type of guardianship that the court will create is based on the needs and best interests of the ward. Some of the types are:

  • “Full guardianship,” in which the guardian has full decision-making powers over the ward because the ward is incapable of making any major personal, financial, or healthcare decisions at all
  • “Limited guardianships” are granted when the ward is capable of making some of their own decisions but needs a guardian’s help making more complex decisions
  • “Co-guardianships” are granted when the court appoints two guardians to make decisions on behalf of the ward. This helps prevent any abuse of power by one of the guardians
  • Short-term or temporary guardianships can be granted by the court when the ward is facing a time-limited emergency situation or is only temporarily incapable of making decisions on their own behalf

How Do I Begin the Guardianship Process?

Because guardianship rights are legal, the formal process begins with filing the proper guardianship application with the proper court, usually a family or probate court. In these filings, you must prove why the potential ward requires a legal guardian.

Many states require that the potential guardian undergo a background check, and you must submit a copy of the report with the other papers. Once all the proper paperwork is submitted, the court will hold a hearing, assess the evidence, and determine if guardianship is necessary.

The court considers several factors when determining whether to grant legal guardianship and whom to select as the guardian. Some of these factors include:

  • The relationship between the potential guardian and the ward, such as whether they are related or are close friends
  • If the ward can give an opinion on the matter, the court will give weight to the ward’s preferences
  • The nature of the ward’s condition, such as whether they are a minor child, elderly, disabled, etc.
  • Whether or not the ward previously signed a formal guardianship letter, as this letter will undoubtedly contain instructions or preferences
  • Whether the guardian can understand and meet the needs of the ward
  • Previous successful experience acting as a guardian
  • The true reason or motive behind the application for guardianship
  • The financial background of the guardian
  • The mental, physical, and emotional stability of the guardian
  • The opinions of the ward’s family, friends, and caretakers about who should be appointed

If the request is approved, the court will formally issue an order to appoint the legal guardian.

What Happens When a Guardianship is Contested?

Guardianship is most often challenged when new evidence arises that the current legal guardian is unfit to care for the ward.

When guardianship is contested, the court will revisit all the factors considered before to determine whether their initial assessment still holds true. An analysis of these factors can help the court determine guardian fitness in the event of a legal guardianship dispute.

What Are Competing Guardianship Applications?

Competing guardianship applications describe a situation in which more than one person simultaneously applies to be the ward’s guardian. An example of this would be two adult children applying separately for guardianship for their elderly parent, and they both apply to be the sole guardian. Each party would need to provide the court evidence to support their claim as to why they would be the most suitable guardian and why they cannot or should not work together.

The situation may be further complicated if issues involve the termination of an existing guardianship. Most guardianships are temporary and will automatically terminate when the circumstances requiring the guardianship have changed, rendering the guardianship no longer appropriate.

An example of this would be if the minor ward turns eighteen or when the ward dies. A guardianship can also be terminated if the guardian requests to have the guardianship terminated. The guardian would petition the court to resign from their position.

Another termination issue: An interested potential guardian may push for terminating an existing guardianship as another way to contest the guardianship. The judge will have to weigh all the facts to determine whether it is best to change guardians.

What Else Should I Know About Guardianships and Guardianship Legal Disputes?

As previously mentioned, the most common legal dispute regarding guardianship is the basic question of who should serve as the ward’s legal guardian. Disputes may also arise over the ward’s estate or when child support payments are involved. It is imperative that the ward’s best interests be held above all else and that any legal guardian carries out their duties in accordance with those interests.

Do I Need an Attorney for Assistance With Contested Guardianships?

If you are a legal guardian and your position is being contested, or if you are contesting the appointment of another legal guardian, you should consult a skilled and knowledgeable guardianship lawyer.

An experienced guardianship lawyer can help you understand your state’s laws regarding guardianship and your legal rights and options. Finally, an attorney can represent you in court as needed.

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