Frequently Asked Questions: Guardianship

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 What is a Guardianship?

A guardianship is a legally created relationship in which there is an appointed party (known as the “guardian”) who becomes responsible for the care and protection of another party (known as the “ward”) and is recognized and enforceable under the relevant laws.

Legal guardianships can be established for both children or minors, as well as for adults who are either mentally disabled or become incapacitated.

In general, guardians are typically selected in one of two ways. The first way guardians become appointed is through a document known as a “guardianship agreement”, which is usually drafted by a child’s parents in case they become deceased or unable to care for the child. The second way that guardians are chosen is by being appointed by a court.

What is a Guardianship of Children?

The guardian of a child is the person who has been given the duty to take care of that child’s needs. This normally includes the child’s essentials, such as providing shelter, ensuring their education, giving them food, and receiving medical care. Guardians are also typically responsible for managing any of the child’s finances or assets.

It is important to note that although a guardianship is a legal relationship that gives the guardian certain rights and obligations over the child, it does not terminate the legal relationship that exists between the child and their biological parents. Rather, guardianships will usually coexist along with the parent(s) legal relationship with the child.

How is Adoption Different from a Guardianship?

Unlike a guardianship, adoption permanently alters the legal relationship between the child and their biological parents. Once the child is adopted, the biological parents give up all of their parenting rights and obligations to the child and they get transferred to the adopted parents who then become the child’s legal parents.

This means that the adopted parents will now have the right to make decisions regarding the upbringing and care of the child.

Thus, after the adoption process is complete, the biological parents will no longer owe the child any form of support. The child also will no longer be able to automatically inherit anything from the biological parent(s) in the event of their death.

How Long Does a Guardianship Last?

There are many different factors that can contribute to the termination of a guardianship. For example, a guardianship may end when a child reaches the age of majority. It can also end when a judge determines that the guardianship relationship is no longer necessary or beneficial for the child.

Another situation that can terminate a guardianship is if the sole purpose of the guardianship was to manage the child’s finances and/or assets and those estate matters are now exhausted.

Lastly, if the guardian feels they no longer can support or care for the child, the guardian can ask the court to relieve them of their guardianship duties and the court will then appoint a new person to become the child’s guardian.

What are “Guardians Ad Litem”?

A “guardian ad litem” is a person who is a court-appointed representative that stands in place of a child or minor during court proceedings. In other words, they advocate on behalf of a child or minor’s best interests in court.

Guardian ad litem representatives are usually requested for specific types of cases. These include divorce, disputes involving estates, or in any other situation where a court determines that a minor or incapacitated adult will not be able to successfully represent themselves.

Although both the courts and the law generally prefer that guardians ad litem are close relatives of the minor or incapacitated adult, they can sometimes be attorneys who have volunteered for the position.

What is Guardianship of Adults?

If a judge or jury finds that an individual (who is of 18 years of age or older) is legally incapacitated, then the court may designate a guardian on their behalf. There are several factors that a court can look at to help them determine whether or not someone is legally incapacitated. These include:

    • If the individual’s decision making process is impaired due to a mental or physical disability or other illness;


    • Whether their decision making process is impaired because of chronic use of drugs, continuous intoxication, or for some reason involving substances or items that cause impaired judgment;


    • The court may also consider whether a person has unusually bad judgment for the average reasonable person, a highly impaired memory, or a major loss of control over their behavior; or


  • Lastly, the judge may look at evidence that shows if someone is unable to care or provide for themselves using just the basic necessities.

Otherwise, an individual is typically considered to be competent under the law once they reach the age of majority (usually 18 years old). If they are not found to be competent or if there is a parent or another interested individual who wants to become the guardian of an adult, then they will be required to obtain an order from a court to be able to do so.

Do I Need to Hire a Lawyer for Help with a Guardianship?

Taking on the responsibility of becoming the guardian of a child or an adult is a major decision because it involves complying with so many legal rights and duties. Thus, if you are thinking about becoming a guardian or have specific questions regarding guardianships, then it may be in your best interest to speak with a lawyer before proceeding.

While it is generally recommended that you do hire a lawyer, it is not mandatory when filing guardianship paperwork. Instead, your local government will usually have the necessary documents to get it set up, which you will be able to file on your own and will be permitted to attend any related hearings without legal representation.

On the other hand, if you believe that your request for guardianship will be challenged or if there is an ongoing legal battle concerning the guardianship relationship, then you should contact a local guardianship lawyer as soon as possible.

An experienced guardianship lawyer can walk you through the process and will be able to advocate on your behalf in court. However, these circumstances are usually rare. Therefore, the best first step you can take is to determine what is required to show proof that you qualify for the guardianship.

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