Guardianship is the legal status in which one adult person, referred to as the “guardian,” is legally authorized to assume responsibility for another person, referred to as the “ward.” A guardian is appointed because the ward is unable to care for themselves due to infancy, incapacity, or disability. A court appoints a legal guardian to care for a person who is in need of special protection.
Legal guardians assume responsibility for the well-being of the ward. Guardianship can come with authority to make decisions about the ward’s personal, medical, and financial affairs. The process and requirements for appointing a guardian depend on the law of the state in which the guardianship is established, as well as the reasons for which the guardianship is needed.
What Is Required to Become the Guardian of a Minor?
A court has the power to appoint a guardian for a minor should their parents die, abandon them, or otherwise become unable to provide them with proper care. Guardianship is most commonly used when relatives of a minor want to provide a permanent home for the child and maintain the child’s relationships with extended family members without terminating parental rights.
In some states, parental rights do not have to be terminated to establish a guardianship. In other states, parental rights are terminated. Some states subsidize a guardianship of a minor ward when the guardian provides out-of-home care to the child. In a subsidized guardianship, a government agency provides financial assistance to the caregiver who becomes the legal guardian of a child in out-of-home care. This is especially true if the child is not going to be adopted or reunited with their parents.
A guardian may be awarded one or both of two sets of legal rights:
- Guardian of the Person: A guardian of the person has the responsibility to provide for the ward’s physical and personal needs, and has the legal authority to give consent on their behalf. The legal guardian is usually in charge of the ward’s food, shelter, clothing, education, and medical care. If the ward is a child and its parents are still alive, the parents are legally required to continue financial support of the child;
- Guardian of the Estate: A guardian of the estate is responsible for maintaining the ward’s financial or other assets until they are able to do so themselves. A guardian of the estate owes the ward a fiduciary duty to manage their property with the utmost integrity and in the interest of the ward.
These roles can be separated between two guardians, but both may also be given to one person. As with most legal issues involving children, the standard that the court applies when appointing a guardian is “the best interest of the child” standard. The court considers several factors such as:
- The need for stability in a child ward’s life;
- The child’s preference;
- The proposed guardian’s ability to provide proper care;
- The relationship between the proposed guardian and the minor ward’s family; and
- Any other relevant information about the character of the proposed guardian.
More than one person can be appointed guardian, if the court thinks it is necessary. Once a family court judge has considered all the information and consulted the appropriate experts, the judge then appoints the child ward’s guardian.
A person has to be qualified to serve as a guardian. The qualifications differ from state to state, but generally, a guardian must be a legal adult without a record of felony or gross misdemeanor convictions. Any criminal conviction that involves a crime of dishonesty, e.g., forgery, bribery, and the like, is a disqualification.
When Can a Guardian Be Appointed for an Adult?
Courts also have the authority to name legal guardians for adults who are physically or mentally disabled. Because naming a guardian for an adult may deprive them of some of their legal powers and rights as a citizen, it might be more challenging to persuade a judge to appoint a guardian for an adult.
It requires a higher level of proof that the person is unable to properly care for themselves. Also, the potential ward is entitled to due process, including service of the petition for the appointment of a guardian, a right to an attorney, the right to attend any hearings or proceedings, the ability to question and confront witnesses, and the right to present evidence on their behalf.
As with minors, guardianship responsibilities for an adult can be split into a guardian of the person and a guardian of the estate. A judge might deem that a person is in need of a daily guardian to assist someone with basic needs and medical care, but is completely capable of handling their own legal and financial affairs.
The court chooses a guardian based on the express wishes of the ward, if the ward is able to express their wishes. If that is not possible, then the court makes a determination based on documents that were prepared before the ward became incapacitated, such as a nomination of a guardian by an adult, durable power of attorney, or a will. If there are no documents to which the court can refer, then a spouse, parent, adult child, brother, sister, or other family member is usually chosen.
The state in which a potential ward lives may have laws regarding who should be appointed guardian. In Colorado, for example, the law specifies an order of priority for the appointment of a guardian. It begins with a person who is nominated in a power of attorney prepared by the ward and ends with the ward’s parent. Other states also have laws specifying who may serve as a guardian. In Maryland, guardians of elderly wards must complete orientation and training programs. It is advisable to consult a guardianship attorney in the state in which a prospective ward resides in order to learn whether there are special requirements for guardianship of an adult in that state.
How Do I Begin the Guardianship Process?
The formal process of seeking appointment of a guardian begins with filing a petition for the appointment of a guardian with the appropriate court, which in most states is a family court in the county in which the ward lives. In these filings, the person seeking the appointment of a guardian asserts that a guardianship is needed. Of course, the person must provide evidence showing that the potential ward is in need of a legal guardian. Many states require that potential guardians automatically attach an approved background check to show their fitness to serve.
States may also have special requirements regarding the process for appointing a guardian and the type of evidence that must be presented to justify the guardianship. For example, in Colorado, after the petition is filed, the court appoints a court visitor. The role of the court visitor is to meet the person who is to be the ward in person.
The court visitor explains the legal proceedings to the ward and how the guardianship would operate. The visitor also asks the ward what their feelings are regarding the guardianship. Finally, the visitor offers the ward the opportunity to have a lawyer appointed to represent the ward. The visitor also visits the proposed residence of the ward, meets the person who is proposed as the guardian and must ensure that the guardian understands what their role is. Other states may have comparable requirements.
In Colorado, the court visitor files a report with the court in which the visitor either agrees or disagrees with the appointment of a visitor.
A hearing is then scheduled with the court. The hearing is important because it protects the constitutional rights of the ward. The ward risks losing the legal ability to make decisions for themselves if a guardian is appointed.
At the hearing, the court reviews the evidence presented to it. Before it can appoint a guardian, the court must clearly find that the proposed ward is an “incapacitated person” and that their needs cannot be met in less restrictive ways. The law defines an “incapacitated person” as one “who is unable to receive or evaluate information or both or make or communicate decisions to such an extent that the person lacks the ability to satisfy requirements for their own physical health and safety, even with technological assistance.
Again, states may have special requirements regarding evidence that must be presented to support a guardianship petition. In Florida, for example, if the proposed ward is an elderly person, a panel of 3 health care professionals, approved by the court, must evaluate the allegedly incapacitated person. Their opinion, with any other evidence regarding the proposed ward’s incapacity is presented to a judge.
Also, at the hearing, the judge and opposing parties, if there are any, may also question the guardian and their legal counsel. The judge then decides whether the proposed ward lacks the capacity to exercise certain specific rights, and which rights, if any, the person might retain.
An experienced guardianship lawyer knows the law regarding guardianships in the state in which the proposed ward lives and understands any special procedures that are required. The lawyer would also know what kind of evidence must be presented to support a guardianship petition. So, it is best to consult a guardianship lawyer if a person wants to petition a court for the appointment of a guardian.
Can a Guardianship Be Modified or Reversed?
The guardianship order issued by the court generally names the parties, the scope of the guardian’s authority, and the expiration date or event that terminates the guardianship. A change in circumstances can warrant a change in a guardianship.
For example, it is entirely possible that a ward’s incapacity is temporary, and when it ends, the guardianship should end. An interested party has the right to file a motion to modify or terminate a guardianship.
Do I Need an Attorney for Guardianship Issues?
Legal guardianships are taken very seriously by courts, but the law also differs from state to state. That is why it is important to seek the assistance of a guardianship lawyer in your area who can inform you about the process in your location and your rights.
Your lawyer can represent you and your interests every step of the way, whether you plan to petition for a guardianship or are a person for whom a guardianship is sought.