Guardian or Caretaker Visitation Rights

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 What Is a Legal Guardian?

A legal guardian is a person who has been court-appointed to care for another person and make decisions on their behalf. Legal guardianships are regulated by guardianship laws, which determine who can become a legal guardian and how the guardianship is to be carried out. There are different types of guardianships, with some granting the guardian full decision-making powers over their ward and others limiting them to only financial or medical decisions.

Essentially, a legal guardian assumes legal responsibility over another person. They have been granted the legal authority to care for their ward’s personal and property interests. Some of the decisions that a legal guardian may need to make on behalf of their ward include the following:

  • Medical decisions;
  • Financial decisions;
  • Contract agreements;
  • Other legally binding statements.

Legal guardianship is usually utilized for incapacitated seniors, developmentally disabled adults, and minor children. Legal guardianship for minors is the most common form of guardianship. In situations involving a minor child, the legal guardian acts as the child’s primary caretaker and may have been selected by the child’s own parents, as opposed to being court appointed. Such an arrangement is most common when a child’s biological parents can no longer care for the child.

Generally speaking, most legal guardians of children are usually persons who are either close family members and friends of the ward or the ward’s parents. In cases where a court is forced to choose an unrelated person, they will often select someone whom a state child welfare program has recommended.

Some factors courts consider choosing a legal guardian to appoint include:

  • The personal relationship between the ward and the proposed guardian;
  • The unique needs of the ward;
  • In the case of older children, their opinion about who should be their guardian;
  • The ability of the proposed guardian to understand and meet the needs of the ward;
  • The length of time that a guardianship is needed;
  • The financial stability and amount of time that the person will realistically be able to dedicate to care for the child properly;
  • Whether the person has a criminal record, and if so, if their crimes involve those committed against children;
  • The person’s reputation for moral character;
  • The health and age of the prospective legal guardian (e.g., are they physically healthy and mentally competent?);
  • Whether the person has an ulterior motive for petitioning to become the child’s legal guardian, such as a financial stake if they are appointed legal guardian.

Guardianship is not always permanent, and many types of legal guardianship arrangements are on a short-term basis. It all depends on the order issued by the court, as well as the specific circumstances.

Legal guardianship generally ends when the ward reaches the age of majority, which is typically eighteen years old. Guardianship may also end for other reasons, such as if the guardian themselves become incapacitated or the guardian resigns.

Further, some legal guardianships are designed to be temporary from the beginning. An example of this would be if the biological parents request the guardianship to be temporary or if there is a pressing emergency. Additionally, at any point during a guardianship, especially in limited guardianship arrangements, the ward may petition the court to end the guardianship if they feel that having a guardian is no longer necessary.

What Rights and Duties Do Legal Guardians Have?

Generally speaking, a legal guardian has the right to make legal decisions on behalf of their ward. Such decisions could include where the ward lives, where the ward attends school (if the ward is a minor), and decisions regarding medical care.

Legal guardians have many duties to their ward, as the legal guardian generally has both legal and physical custody of the ward. Because of this, many of the guardian’s duties to their ward are similar to a parent’s duty to their child. Some of the most common examples of these duties include:

  • Providing food, clothing, and shelter;
  • Maintaining their ward’s physical, mental, and emotional health;
  • Protecting the ward from various safety hazards and unsafe situations.

All legal guardians have a fiduciary duty to their ward, which means that a guardian must act in the ward’s best interest. They are legally mandated to be honest and responsible when managing their ward’s finances. They must act in good faith and exercise good judgment. The guardian is to use the same level of care and judgment with the ward’s estate as they would their own.

Additionally, they must keep their funds separate from their ward’s. Furthermore, when a guardian of the ward makes financial decisions on the ward’s behalf, the guardian must act in good faith and exercise sound judgment. The guardian must act in good faith and judgment, especially when they are making decisions, such as whether to invest in a certain asset on behalf of the ward.

Do Legal Guardians Have Visitation Rights?

Child custody and visitation rights can be a complicated matter, some more complex than others. An example of this would be a custody arrangement involving a mix of biological parents, adoptive parents, stepparents, other relatives such as grandparents, and a legal guardian.

Legal guardianship does not always involve actual, physical custody of the ward. The guardian may have various responsibilities related to their ward’s upbringing, but the child’s biological parent maintains physical custody rights. In many cases, a legal guardian may be granted visitation rights as long as it falls within the child’s best interests standard. The visitation arrangement must serve to directly benefit the child and their interests, not the interests of the legal guardian or any other parent or adult party.

Requests for legal guardian visitation rights can be made directly through a divorce court order covering custody and visitation, or by appointing a guardian.

Can a Legal Guardian Determine the Visitation Rights of Other Parties?

In some jurisdictions, the legal guardian is granted the authority to restrict or limit the visitation rights of others. For example, a legal guardian may prohibit a biological parent from visiting the child due to past physical abuse by the parent.

In such a case, the legal guardian may be able to obtain a court order which would prevent the biological parent from being awarded visitation rights. It is assumed that a legal guardian would not take such power lightly and would make such decisions solely based on keeping the child safe.

If a legal guardian desires to place such limitations on someone else’s visitation rights, they are typically backed by a court order enforcing the guardian’s judgment. What this means is that any party who wishes to challenge the visitation arrangements will need to file in court in order to have the visitation arrangement changed.

Do I Need an Attorney for Guardianship and Visitation Rights?

As can be seen, legal guardianships are a serious matter. Suppose you have any questions or issues regarding legal guardian visitation rights. In that case, you should consult with a skilled and knowledgeable guardianship lawyer if you need assistance with appointing a legal guardian or if you have been appointed as a ward’s legal guardian.

An experienced guardianship lawyer can help you understand the guardianship process, your state’s specific laws, your rights, the ward’s rights, and other parties’ rights.

Also, if the court has requested your appearance, having a qualified attorney to represent you in court will make the process easier to manage and will help protect your rights and interests.

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