Guardianship allows a person to take the legal responsibility for caring for another person. In many cases, this involves an adult taking legal responsibility for a minor child. However, it can also involve an adult taking care of another adult.
For example, if someone has been incapacitated or is mentally incompetent, the court may approve someone to serve as their guardian to make sure that their interests are provided for and that they are taken care of. The person taking on the legal responsibility is referred to as the “guardian,” while the person being taken care of is called the “ward.”
While the details may vary depending on the state you live in, guardianship is generally approved and supervised by the court system. You generally need a court order to establish a guardianship—and that means that you also generally need a court order to terminate it.
- How Does Guardianship Terminate?
- What is an Automatic Termination Of Guardianship?
- Automatic Termination of Guardianship: Death
- Automatic Termination of Guardianship: Child Reaches Adulthood
- Automatic Termination of Guardianship: Adoption, Marriage, Military Service
- Automatic Termination of Guardianship: Child is Emancipated
- Automatic Termination of Guardianship: Child Requests for Termination
- Can the Guardian Request to Terminate the Guardianship?
- What Happens if the Guardianship is Contested?
- Do I Need to Talk to a Lawyer If I Want to Terminate a Guardianship?
Most cases of guardianship are temporary guardianship cases, which means the guardian assumes legal responsibility for a limited amount of time as defined by the courts. For example, if the ward has been incapacitated, an emergency guardianship may be intended to be in place only until the ward regains their capacity to take care of their own affairs. In most cases, it is necessary for a formal petition to be filed with the court in order to start the termination process.
One of the easiest ways to terminate guardianship is to show that the ward meets requirements for automatic termination. Even though the guardianship may terminate automatically in these instances, you may need to file a petition or other document with the court in order to make sure that the orders are appropriately adjusted to reflect the new situation.
The guardian’s obligations terminate with the death of the ward. However, the guardian may be legally required to give an accounting of the ward’s finances before the court (if the guardian was responsible for the ward’s finances).
Once the ward turns 18, they are usually considered an adult. Once they reach adulthood, the guardianship automatically terminates.
In many states, the ward’s adoption, or marriage will be grounds for termination of the guardianship. Additionally, if the ward enters military service, this will also be grounds for termination.
In the case of the guardianship of a child, the child may apply for emancipation. Emancipation means that the child has petitioned the court to be ruled an adult—if the court grants the petition, the child will be legally an adult, even if they have not reached the age of 18. If the child is emancipated, the guardianship will be terminated.
If the parents of a minor child want their child to live with them again, they can seek to terminate the guardianship. However, they will need to show evidence to the court that the termination of the guardianship will be beneficial to the child. For example, the parents may need to show:
- That they can provide the child a stable home;
- That they have income that can support the child; and
- That they are “fit” to resume taking care of the child.
If the child was removed from the parents for reasons related to the parents’ substance abuse, they may need to show that they have successfully completed a rehabilitation program as part of the fitness requirement.
A guardian could also request to terminate a guardianship by filing a petition with the court to resign their position as guardian. Again, to terminate a guardianship in this way, the guardian must file a petition with the court, announcing their intent to resign.
The guardian may need to show that the resignation of guardianship is in the best interests of the ward. Some factors that may influence the decision that resignation is in the best interests of the ward may include:
- One or both parents (in the case of minor children) are able to resume their parental responsibilities;
- The guardian can no longer serve effectively due to age, illness, or infirmity;
- The resignation will allow financial gain for the ward;
- The guardian and the ward disagree with respect to the ward’s care—and the conflict is detrimental to the ward (likely to occur in the case of minor children); and/or
- An increase in the burden of the guardianship that should have been accounted for during the original guardianship appointment.
The court may proceed in a number of ways, including terminating the guardianship, appointing another guardian, or (in the case of minor children) placing the ward in foster care.
If a guardianship is contested, the persons contesting the guardianship may need to show evidence that the guardian is unfit or unable to perform their obligations. This may include evidence that the guardian misused money that was intended for the ward’s welfare, that the guardian was abusive, or that the guardian is unable to fulfill their obligations because of substance abuse or incapacitation.
In this case, it is in your best interests to talk to an experienced attorney if you are dealing with a contested guardianship. In very serious cases, you may need to file a lawsuit for damages if the guardian has violated their duty of care to the ward.
While guardianship might sound simple on its face (one person agreeing to take care of another), it can have some complex legal issues involved. If you have any questions about the arrangements, you may want to talk to a guardianship lawyer about the process.
An experienced guardianship lawyer can review court documents and explain your rights and responsibilities during a guardianship. If you need to terminate the guardianship, your lawyer can also prepare and file a petition with the court to start the process, and help you navigate the nuances of the legal system.