Guardianship is the legal process used to protect those who are unable to care for themselves due to infancy, incapacity, or disability. A court will appoint a legal guardian to care for an individual who is in need of special protection.
Legal guardians are charged with the well-being of that person, which also comes with the authority to make decisions for their personal, medical, and financial interests. The process and requirements for appointing a guardian depends on the laws of their state, but more importantly on the reason that they need guardianship help.
What are the Requirements for Becoming Guardian of a Minor?
Although anyone at any age might need a legal guardian depending on the circumstances, the most commonly thought of group is that of minor children. A court has the power to appoint an adult guardian for a minor should their parents die, abandon them, surrender parental rights, or are otherwise unable to provide them with proper care.
There are two sets of legal rights that may be awarded to a guardian:
- Guardian of the person. A guardian of the person has the responsibility to provide for the minor’s physical and personal needs, and has the right to legally consent on their behalf. The legal guardian is in charge of the minor’s food, shelter, clothing, education, and medical needs. If the child’s parents are still living, they are legally required to continue financial support of the child.
- Guardian of the estate. The guardian of the estate has the responsibility to maintain the minor’s financial or other assets until they are able to do so themselves. They owe the ward a fiduciary duty to responsibly manage their property.
Both of these roles can be separated, but both sets of legal responsibilities may also be given to one person. Like most legal matters involving children, the standard that the court will refer to when appointing guardians is “the best interest of the child.” The court will weigh many factors such as:
- The child’s preference;
- Ability of the proposed guardian to provide proper care;
- The relationship between proposed guardian and the child’s family; and
- Any other information regarding the character of the proposed guardian.
More than one person can be appointed guardian, if the court deems it necessary. Once a family court judge has weighed all the information and talked to the proper experts, they can legally appoint the child’s guardian/s.
What Circumstances Can a Guardian Be Appointed for an Adult?
In addition to minor children, courts also have the power to name legal guardians for adults who are physically or mentally incapacitated or disabled. Because naming a guardian for an adult may deprive them of some of their legal rights and powers as a citizen, it is much harder to get a judge to declare a guardian for an adult.
It requires a higher level of proof that the person is unable to properly care for themselves, and the potential ward is entitled to due process including service, legal counsel, the right to attend any hearings or proceedings, the ability to question and confront witnesses, and the right to present evidence on their own behalf.
Just like with minors, guardianship responsibilities can be split into guardian of the person and 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.
How Do I Begin the Guardianship Process?
Because guardianship rights are legal, the formal process begins with filing the proper guardianship paperwork with the proper court, usually a family court. In these filings, you will assert and provide evidence why the potential ward is in need of a legal guardian. Many states require that potential guardians automatically attach an approved background check to assert their fitness.
Once all the proper paperwork is submitted, the court will assess the evidence and determine if a guardianship is necessary. Most of the time this requires a hearing where the guardian and their legal counsel can be questioned by the judge or any opposing parties. If the request is approved, the court will formally appoint the legal guardian through a court order.
Can a Guardianship Be Modified or Reversed?
Yes. When a guardianship is granted, the court will typically issue a guardianship court order/agreement. This document names the parties, the scope of the guardian’s authority, and the expiration date or event that will terminate guardianship. And just like child support or alimony, a change in circumstances can warrant a change in guardianship rights and authority. An interested party has the right to file a motion to modify or reverse the court order.
Do I Need an Attorney for Guardianship Issues?
Legal guardianships involve the reward and potential removal of important rights, which is why it is important to seek the assistance of a family law attorney. They can inform you of the process, your rights, and represent you and your interests every step of the way.