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Frequently Asked Questions: Guardianship

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What is Guardianship?

A guardianship is a legal relationship where one person assumes the legal responsibility, care and protection of another individual who is called a “ward”. Guardianship can be established for children and minors as well as for older individuals.

But what are some common questions people have about guardianship?

What is Guardianship of Children?

A child’s guardian is someone who takes care of a child’s needs and this typically includes things such as shelter, education, food and medical care. Guardians also typically manage the finances of the child.

It is important to note that although a guardianship is a legal relationship that gives the guardian certain rights and obligations regarding the child, it does not end the legal relationship that exists between children and their biological parents. Rather, guardianship coexists with that legal relationship.

How is Adoption Different?

Adoption, unlike guardianship, permanently changes the legal relationship between children and their biological parents. After adoption, the biological parents give up all their parenting rights and obligations and the adopted parents become the legal parents.

After adoption, the biological parents no longer owe the child support and the child permanently comes under the care of the adopted parents. Also, the child can no longer automatically inherit from the biological parents.

How Long Does Guardianship Last?

The duration of the guardianship of a child can be based on different factors. Guardianship can end when the child reaches the age of majority or when a judge determines that a guardianship is no longer necessary or beneficial for the child.

Also, if the sole purpose of guardianship was to manage the child’s finances and the child’s financial assets are exhausted, then the guardianship can end. Also, guardians can ask a court to be relieved of their guardianship and the court will then appoint a new guardian.

What are “Guardians Ad Litem”?

Court-appointed representatives who stand in the shoes of the minor during court proceedings which involve the minor in some way are called guardians ad litem.

This is common in cases such as divorce, disputes regarding estates or in any other situation where the court determines that the minor or incapacitated adult cannot successfully represent themselves. In terms of guardians ad litem, close relatives are preferred but attorneys may also be used.

What is Guardianship of Adults?

If an individual who is 18 years of age or older is found by a judge or a jury to be incapacitated, a guardianship for that individual may be created by the court. Among the criteria for determining if someone is incapacitated is:

  • Whether their decision making process is impaired because of mental or physical disability or illness.
  • Whether their decision making process is impaired because of chronic use of drugs, chronic intoxication or for some other reason.
  • Whether someone has unusually bad judgment, highly impaired memory or major loss of behavior control.
  • Whether someone is unable to care for themselves and provide themselves with basic necessities.

An individual is considered competent under law when they reach the age of majority and if a parent or another interested individual wants to be a guardian of an adult, it is necessary to obtain an order from the court.

Should I Contact a Lawyer?

Becoming the guardian of a child or an adult is a major decision and it can involve major rights and duties. If you are considering this decision or have specific questions, it may beneficial to contact a local family law attorney before proceeding. However, it is typically not necessary to hire a lawyer to file for guardianship. Typically your local government will have the necessary paperwork and you can file them and attend hearings without legal representation.

However, if you believe your request for guardianship will be opposed and there is an existing legal battle over the guardianship, then it is in your best interest to contact a local family lawyer to help you through the process and potentially represent you in a court of law. But these circumstances are rare, and the best first step is to determine what you need to show that you qualify for guardianship.

Photo of page author Arvind Ravikumar

, LegalMatch Legal Writer

Last Modified: 08-23-2018 09:57 AM PDT

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