In general, a guardian is usually chosen in one of two ways. The first is that a person who creates a will (i.e., the testator) will typically name someone, such a close relative, to become a guardian in the event of their death or incapacitation.
The second way in which a guardian may be chosen is by the court. A court may appoint a legal guardian for the benefit of a child, minor, developmentally disabled adult, or otherwise incapacitated adult. An individual being cared for by a guardian is referred to as the ward.
A guardian may also be appointed during an emergency situation, such as one that involves a risk of harm to the ward if no guardian is currently appointed, or when a guardian is necessary for a specific amount of time. For example, if both parents are sentenced to prison and will not be able to adequately care for their minor child until they are released.
In addition, the court must approve some form of a guardianship agreement or similar document as evidence of the appointment and in order to establish the terms of the guardianship. This agreement should also contain a detailed description of the guardian’s requisite legal duties.
The agreement should also identify each of the parties governed by its terms, including the child or the adult ward, the ward’s parents, and if there are any, the ward’s current guardians. It should outline the length of term for the guardianship or the facts of the emergency situation as well. Lastly, it should address the purpose of the guardianship, and when and how it can be terminated.
Who Can be a Legal Guardian?
Any person can be appointed as a legal guardian, so long as they are over the age of majority (usually 18 years of age, but this may vary by state); are capable of taking care of the ward’s health, well-being, personal, and property interests; and are able to make legal decisions on their behalf.
Typical examples of the types of guardians who have been appointed in prior cases include close relatives, friends of the ward, and unrelated persons whom the court has specifically chosen.
Other eligibility requirements that the court may consider before approving a guardianship include the following:
- Whether a person has a criminal record, especially those involving crimes against children;
- Their moral character;
- Their age, as well as mental and physical condition;
- The person’s financial stability; and
- Whether the individual has any financial stake in the appointment of guardianship.
What are Some of the Differences between Legal Guardianship and Child Custody?
Although a guardian has many of the same responsibilities that a parent has, a guardian does not possess all of the same privileges as a parent. As such, a guardianship appointment does not automatically terminate the rights of the parents.
Also, unlike a parent, a guardian may only have temporary physical custody of the child, and not legal custody. In some cases, however, a guardian may obtain legal custody as well if the parents’ rights are terminated and the guardian adopts the child.
How Do I Terminate a Guardianship?
A guardianship appointment is usually terminated by the court. This may happen when the circumstances supporting an appointment no longer exist. For example, if a person is the designated guardian of a minor and that minor has reached the age of majority, then this may terminate the guardianship.
There are several other ways in which a guardianship appointment can be terminated, including when a child or minor becomes deceased, reaches the age of majority, gets adopted, or if the guardian petitions the court to be relieved of the appointment.
What are Some Factors to Consider When Choosing a Guardian?
When a court appoints a guardian for a child, they must consider a legal concept known as the child’s best interest standard. An individual should also use this standard when they are contemplating who to designate as their child’s guardian as well. This is especially true if a person is trying to determine who should permanently replace them as their child’s guardian in case of their death or incapacitation.
The best interests of the child standard is generally flexible and mostly employed on a case-by-case basis since each individual’s situation is different. However, there are some general factors that the court will consider when analyzing whether a person meets the best interest of the child criteria to become their guardian, such as:
- The child’s preference (note that this will depend on the child’s maturity);
- The age of the child and whether the child has special needs or not;
- The health and maturity of the person being considered as guardian;
- The financial stability of the potential guardian;
- The lifestyle and home situation of the person being appointed guardian;
- The relationship of the individual to the parents of the child;
- The age of the person being considered; and/or
- The shared religious or spiritual beliefs of the designated guardian (if any).
How Do I Make My Preferences for a Guardian Known?
It is extremely important that a person expresses their desire for a specific guardian in the contents of their will. The reason for this is because the terms of the will are generally enforceable, so long as there is no reason to challenge it on the basis of mental incompetence.
Additionally, it is important to make sure that both parents are on the same page prior to writing their wills in regard to the person whom they are choosing as a potential guardian should something happen to them.
What Types of Issues Arise in Guardianship Appointment Cases?
Even when the court is responsible for appointing a legal guardian, there may still be a challenge to the guardianship appointment. Questions may arise as to the capacity of the individual and whether they would be able to actually serve as a guardian.
Also, guardianship proceedings can be fraught with emotions from the parents or family members whose roles are essentially being replaced by the guardian. This can cause a lot of strife between parties and may result in many unnecessary disputes, including something as basic as not liking whom their deceased spouse chose as guardian.
Thus, as mentioned above, it is important to have these discussions during the creation of a will. This can help ensure that the parents are on the same page in case of an emergency.
What are Some Basic Guardianship Fiduciary Duties?
Guardians owe a fiduciary duty to the ward. This means that they must act with honesty and integrity in fulfilling their service to the ward, and that they must put the ward’s interests first. The guardian must also not combine the ward’s funds with their own.
Although the guardian is typically not responsible for the debts of the ward, this can change if the guardian fails to make wise financial decisions on behalf of the ward, using the same level of care and judgement as the guardian would exercise on their own behalf. Failure to do so may result in the guardian being held legally responsible for any financial losses suffered by the ward.
Do I Need to Hire an Attorney to Choose a Legal Guardian?
Petitioning the court to establish a guardianship or challenging one can be fairly daunting and may involve some complex procedures. Thus, retaining an experienced guardianship lawyer in your area can help you to preserve your rights. Your lawyer will also be able to walk you through the necessary steps for your petition or dispute.