In short, a guardianship is a legal relationship that allows one person, known as a “legal guardian,” to make decisions for another person, who is known as the “ward.” For example, a typical guardianship arrangement would be an adult legal guardian assuming responsibility for the care of a child.Typically, legal guardians are appointed by courts when there is evidence that a person is disabled or incapacitated.
As mentioned above, a person other than the parents of a child may be appointed as a legal guardian over a child. Courts commonly appoint legal guardians for children with special needs. However, a court may award a person legal guardianship over a child for a variety of different reasons. Importantly, courts will always utilize the child’s best interest standard when deciding whether to grant a legal guardianship.
Legal guardians can either be appointed by the parents of the child or the court. Alternatively, a third party may seek to be appointed legal guardian over a child by filing a petition for guardianship of a minor child. For example, a parent may write in their will that a family member be appointed legal guardian over their child in the event both of the child’s parents become unable to care for the child. When considering whether to appoint an individual as legal guardian over a child, the court will consider a variety of different eligibility factors.
Typically, most states require that the person seeking to be appointed legal guardian:
- The applicant must be a legal adult. Although state laws vary, this typically this means the person seeking to be appointed legal guardian is at least 18 years of age;
- The applicant must not have been convicted of certain felonies, such as crimes against children, crimes of a sexual nature, or other serious felonies;
- The applicant must have good physical and mental health, as well as the time necessary to care for the child;
- The applicant must have the resources necessary for providing for the needs of the child. When analyzing this eligibility factor, courts will often look at the legal guardian’s resources, as well as the child’s resources. Additionally, some children are eligible for government assistance; and
- The applicant must have good moral character and fiscal responsibility. Because the legal guardian will be in charge of caring for a minor, the legal guardian typically must show that they are both fiscally responsible and that they have a good moral character.
As can be seen, there are a variety of different eligibility factors that are weighed when determining whether an individual should be appointed as a legal guardian over a minor. In addition to the aforementioned eligibility factors, the person seeking to be appointed a legal guardian must also generally show the following in order for the court to grant the guardianship:
- Both parents consent to the person being named legal guardian, unless one or both of the parents are unavailable;
- It is in the best interests of the child that the court award them legal guardianship; and
- The parents of the child have either become incapacitated, the child has been abandoned, the parents rights have been terminated, or the child has special needs.
Similar to persons seeking to be appointed as legal guardians for children, a court will appoint a guardian only according to the circumstances and considering the best interest of the adult ward. Additionally, there may be two appointed guardians for an adult ward: a guardian of the estate and a guardian of the person.
A guardian of the person is responsible for the care and control of the adult ward with respect to support, education, residence, health, medical care, and the like. A guardian of the estate is responsible for managing the property of the ward. Courts often allow for the appointment of two separate legal guardians over one adult ward, because sometimes one person is more qualified for the day-to-day care of the ward, while another is more fiscally responsible to manage the ward’s finances.
Although state laws vary, generally an applicant for guardianship must meet certain eligibility requirements, including but not limited to the following:
- The applicant must show that they are eligible, entitled, or the proper person to be guardian;
- The applicant must show that they have not committed any felonies;
- The applicant must show that they are of good moral character;
- The applicant must show that they are fiscally responsible; and
- The applicant must demonstrate that the proposed ward is without capacity to care for themselves or their property.
As can be seen, there are a variety of different eligibility factors that an applicant for legal guardianship over a child or an adult ward must meet. Therefore, if you are seeking to be appointed as legal guardian over someone, it is in your best interests to consult with a well qualified and knowledgeable family law attorney in your area.
An experienced family law attorney will be able to advise you of your best legal course of action in seeking legal guardianship. Additionally, they will be able to help you filed the necessary legal paperwork, as well as represent you in court as needed.