A guardianship is an important legal role. The person who is a legal guardian is typically appointed by a probate court. A guardianship empowers the court-appointed guardian to make personal, medical, and financial decisions on behalf of another person who is referred to as the “ward”.
In most guardianship situations, the ward is either a child or an individual with severe mental or physical disabilities that prevent them from making decisions on their own behalf. In some states, a guardianship is called a “conservatorship”.
For example, typically a parent’s status as the legal guardian of their child ends when the child turns 18. However, a child may be incapable of caring for himself or herself because of a disability. In this situation, the parent might seek to extend their guardianship of their child into the child’s adulthood.
Another example would be an elderly parent who becomes mentally incapacitated and unable to make personal, medical and financial decisions. The adult child could seek to become the guardian of their elderly parent in this situation.
Guardianship is a matter of state law. Therefore, if a person feels the need to seek a guardianship for a disabled child, incapacitated elderly parent, or other person, it would be helpful to consult a family lawyer who is familiar with the laws regarding guardianship in the state where the person lives.
Are There Different Types of Guardianships?
There are different types of guardianships. In some guardianships, a guardian has full decision-making power over the ward. In others the guardian is limited to making only financial or medical decisions.
The different types of guardianships vary from state to state, but common types of guardianships include:
- Full guardianships in which the guardian has full decision-making powers over the ward, because the ward is incapable of making any personal, financial or healthcare decisions;
- Limited guardianships that are granted by the court when the ward is capable of making some of their own decisions about their personal care, but might need help from a guardian for making more complex decisions related to finances, healthcare or life changes;
- Co-guardianships that 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;
- Guardianships of an estate in which a guardian’s main responsibility is managing the ward’s assets, and making financial decisions on behalf of the ward; and
- Guardian ad litem in which a guardian is appointed by the court for the sole purpose of representing the ward’s interests in some kind of legal proceeding.
Who Can Serve as a Guardian?
A probate court decides who is qualified to be appointed as a guardian for the ward. When choosing a guardian, the court will look at multiple factors that vary from case to case. These typically include:
- Whether there is a personal relationship between the ward and the guardian;
- The unique needs of the ward;
- If the ward can give an opinion on the matter, the ward’s opinion about who should be the guardian is considered;
- Whether the guardian is able to understand and meet the needs of the ward;
- The location where the guardian and ward live;
- Previous successful experience acting in a guardianship role;
- Possible concerns related to the intent or motives of the guardian that might not be in the best interests of the ward;
- Whether the guardian is available for the entire length of time that a guardianship is needed; and
- The opinion of the ward’s family, friends or caretakers about who should be appointed.
When Would a Legal Guardian Be Appointed for a Child?
Courts may appoint an adult who is not the parent of a minor child to act as a guardian for the child. Courts assign guardians for minor children in a number of situations, including:
- When parents have abandoned a minor,
- When a minor’s parents have died; or
- When a minor’s parents are incapable of providing proper care for the minor.
A person who could serve as a legal guardian might be a family friend, family member, or other person the court thinks will act in the minor’s best interest. The legal guardian of a minor might be granted physical custody of the minor, or they may act only as a financial guardian who exercises control over the minor’s property.
In certain circumstances, an adult may be appointed by the court to serve as a guardian ad litem. A guardian ad litem is an adult who represents a minor in some kind of legal proceeding.
What Guardianship Eligibility Factors are Considered for Adult Wards?
Courts appoint guardians to protect the interests of adults who are not capable of caring for themselves because of some kind of incapacity. A guardianship will be set up when a court decides that a person is in need of protection because of severe disabilities, hospitalization, or other impairments that affect the person’s ability to make decisions for themselves.
Because a guardianship deprives an individual of their personal right to manage themselves and their affairs, certain steps must be taken before a guardian is appointed.
A person has a right to receive notice of a guardianship proceeding. A person has a right to be represented by a lawyer in a guardianship proceeding. During the proceeding, a person has the right to attend, confront witnesses and present evidence.
If the court appoints a guardian, the guardian is encouraged to consider the ward’s wishes and give the ward as much autonomy as possible. As above, guardianship of an elderly or incapacitated individual may entail guardianship of the person, guardianship of the person’s estate, or both.
What Are the Duties and Responsibilities of a Guardian?
The duties and responsibilities of a guardian depend on the type of guardianship established by the court. There are several kinds of guardianships including:
- Guardianship of the person — A guardianship of the person requires the guardian to make decisions regarding the care and support of the ward. The guardian may have to give consent to and monitor medical treatment, arrange professional services, monitor living conditions, or make end-of-life decisions and preparations. When making these decisions, the guardian is expected to take into consideration the ward’s wishes, as well as their physical and financial needs.
- Guardianship of the estate — A guardianship of the estate requires the guardian to manage the ward’s personal property. The guardian must preserve and protect assets, and might have to distribute income or obtain appraisals of property. The guardian has to report to the court regularly regarding the status of the ward’s estate.
A guardian of the estate or property of a ward must act as a fiduciary. This means that the guardian must act honestly and faithfully to preserve the ward’s property and to use the assets for the benefit and welfare of the ward and never for the benefit of the guardian.
It is an important responsibility to serve as the guardian of another person or of their property. A guardian must be willing and able to manage the responsibility successfully.
How Long Can a Guardianship Last?
The length of a guardianship depends on the probate court’s assessment of the best interests of the ward. If the ward is a child, the guardianship will typically end when the child turns 18 years old.
At any point during a guardianship, particularly in limited guardianship situations, the ward may petition the probate court to end the guardianship if the ward believes that having a guardian is no longer necessary to serve their best interests.
A guardianship will end if the court determines that a guardianship is no longer necessary, or when the ward dies. Some types of guardianships, such as short-term guardianships, are limited to a specific time period from the beginning of the appointment and will end automatically unless renewed.
Do I Need a Lawyer to File for a Guardianship?
If you wish to be appointed as a guardian, it is advisable to seek the services of a guardianship lawyer who is experienced in the guardianship process. The process of establishing a guardianship can be complex. A guardianship can deprive an adult of their autonomy and ability to make decisions for themselves, so a court will be careful in making the determination that a person needs a guardian.
For the best outcome in your case, a guardianship lawyer will be able to help you prepare the technical documentation that is needed for the application. They can also explain to the court why a guardianship is necessary and why you are qualified to be appointed as the guardian of the ward. A favorable result is most likely if you are represented by an experienced guardianship lawyer.