A court may choose to appoint a legal guardian for the benefit of a child, minor, developmentally disabled or otherwise incapacitated adult. The individuals being cared for by the guardian are called wards.

The guardian can be appointed in the case of an emergency situation involving a risk of harm to the ward if the guardian is not appointed, or for specific lengths of time, for example, when the parents cannot adequately care for the child.

A guardianship agreement or document from the court evidencing the guardianship appointment is required to establish the terms of the guardianship. It should clearly establish the legal responsibility of the guardian.

Additionally, it should identify all the parties governed by the agreement, including the child or the adult ward, the parents and current guardians (if any). It also should outline the length of term for the guardianship or the facts of the emergency circumstances. It should also address the purpose of the guardianship and when and how it shall be terminated.

Who Can Be a Legal Guardian?

Any person may be appointed a guardian if the individual is over the age of majority (which may vary by state) and is capable of taking care of the individual’s health and well-being and their personal and property interests, and capable of making legal decisions on their behalf.

Guardians have been appointed who are close relatives and friends of the ward, or unrelated persons whom the court has specifically chosen. Other eligibility requirements that the court may consider before approving a guardian include:

  • Criminal record, especially those involving crimes against children;
  • Moral character;
  • Age, mental and physical condition; and
  • Financial stability and whether the individual has any financial stake in the appointment of guardianship

What are the Differences between Legal Guardianship and Child Custody?

Though the guardian has many of the same responsibilities as a parent, a guardian is not the same as a parent and appointment does not automatically sever the rights of the parents.

Also, unlike a parent, the guardian may have only temporary physical custody of the child. In some instances the guardian may obtain custody of the child if the parents’ rights are terminated and the guardian adopts the child.

How Does Guardianship End?

The guardianship appointment is typically terminated by the court when the circumstances supporting the appointment is no longer present. There are several other ways in which the guardianship can end, including when the child dies, reaches the age of majority, is adopted, or if the guardian petitions the court to be relieved of the appointment.

How Do You Choose a Guardian?

In appointing a guardian for a child, the court will consider the best interests of the child. You should consider this standard also if you are the one responsible for choosing a guardian, especially if you are determining the permanent placement of your child in the case of your death.

The best interests of the child is determined on a case-by-case basis, but some general factors the court considers in determining the best interest of the child include:

  • The child’s preference (assuming maturity);
  • The child’s age and whether the child has special needs;
  • The health and maturity of the person being considered;
  • The financial stability of the person being considered;
  • The home situation of the person being considered;
  • Relationship of the individual to the parents;
  • Age of the person being considered; and/or
  • Shared religious or spiritual beliefs.

How Do I Make My Preference for a Guardian Known?

It is important that you express your desire for a specific guardian in your will. Generally, the terms of the will are enforceable so long as there is no reason to challenge the will on the basis of mental incompetence. In preparing your will, it also is important that you and your co-parent are on the same page.

What Legal Disputes Arise in the Case of Appointment of Guardianship?

Even when the court is responsible for appointing a legal guardian, there might still be a challenge to the appointment. Questions may arise as to the capacity of the individual to serve as a guardian. Guardianship proceedings can be fraught with emotions from the parents or family members whose roles are essentially being replaced by the guardian.

What are Some Basic Guardianship Fiduciary Duties?

Guardians owe a fiduciary duty to the ward, meaning they must act with honesty in fulfilling their service to the ward. That means the ward’s interest must come first. The guardian also must strive not to commingle the ward’s funds with their own. The guardian is not responsible for the debts of the ward.

However, that may all change if the guardian fails to make financial decisions on behalf of the ward with the same care and level of judgement that the guardian would exercise on their behalf.  Failure to do so may result in the guardian being held legally responsible for any financial loss for the ward.

Do I Need an Attorney to Choose a Legal Guardian?

Petitioning the court to establish a guardianship or to challenge one can be quite daunting. A family lawyer can help you with your petition and help you preserve your rights.