The person being cared for is often called a "ward." Usually, in the case of children, the ward's parents are not capable of raising or taking care of them, often due to death or incapacity.
Who Can be a Legal Guardian?
Each state has laws that dictate rules for legal guardians. Generally, a legal guardian can be anyone over the age of majority (meaning they have reached adulthood, usually 18-21 depending on the state) who is able to take care of and meet the needs of the ward.
Often the courts will review the situation to see whether a potential guardian is capable of adequately caring for a child, including (but not limited to) providing food, shelter, education and medical care.
How Can I Establish a Legal Guardianship?
The legal guardianship process begins with a court filing--the potential guardian must file a petition with the court indicating their intent to obtain guardianship. After the petition has been filed, there will be a hearing in court to determine whether guardianship is appropriate and in the best interests of the child. If you are applying for guardianship, then you will need to gather evidence to present to the court to help in the decision.
How are Legal Guardianship and Child Custody Similar?
In both legal guardianship and child custody, an adult is placed in a position where they are responsible for the health and well-being of a child. However, child custody refers to the child's placement with a parent, while guardianship refers to the child's placement with an adult who is not their parent.
Depending on the type of child custody, the responsibilities of a legal guardian can actually be greater than that of the parent. For example, if a parent has physical custody (but not legal custody) of the child, then they may not have the same power to make legal decisions on the child's behalf as a legal guardian.
Is Legal Guardianship the Same as Adoption?
Legal guardianship is not the same thing as adoption. Although both relationships create certain rights and obligations, there are a few very important differences.
Legal guardianship gives the adult guardian the rights and responsibilities to take care of the child. However, it does not sever the biological parents' legal relationship with the child. The biological parents are still legally recognized as the child's parents even if the child is living with a guardian.
Adoption permanently changes the legal relationship between the child and their biological parents. When the child is adopted by another family, the adoptive parents become the legal parents of the child. The biological parents no longer have any rights or responsibilities to the child, and they no longer have any parental rights to the child.
This includes any questions of inheritance. Once a child is formally adopted, they give up any rights of inheritance (other than what is devised by will) they may have to their biological parents.
What If a Parent Already Has Custody of the Child?
The parent-child relationship is a very special relationship, and courts prefer to keep families together. If the child does not appear to be in danger according to the evidence, the court would be reluctant to interfere in that parent-child relationship. If a parent has legal custody of a child, the court will usually leave that relationship in place, and will not appoint a legal guardian.
How Does Guardianship End?
There are several ways to terminate legal guardianship. Some of these methods cause automatic termination of the guardianship, while others require a request to be filed in court.
Some circumstances that would cause the automatic termination of guardianship include:
Death of the Ward
A guardian's obligations terminate if the child dies. If the guardian was in charge of any finances on the child’s behalf, they may need to give an accounting of the finances to the court.
Child Reaches Adulthood
Once the child reaches the age of majority (usually age 18, depending on the state), they are considered an adult, and the guardianship automatically terminates.
Emancipation or Marriage
In many states, the child's emancipation or marriage are grounds for termination of the guardianship.
Once the child is adopted, they have new parents who are responsible for their well-being, and no longer need a legal guardian.
In some cases, a judge may decide that the reasons for the guardianship no longer exist, and end the guardianship. Of course, the guardian can also ask the court to be relieved of their responsibility by filing a petition to resign.
If the guardian requests to terminate their responsibility, there will be a hearing before the court where the judge may weigh several factors to determine whether termination of the guardianship is in the best interests of the child.
Do I Need a Lawyer If I Am Trying to Apply for Guardianship?
Legal issues regarding guardianship can get complicated quickly, especially if your situation also features problems related to child custody. If you are dealing with a situation that has issues regarding child custody and legal guardianship, it is in your best interests to contact an experienced child custody lawyer.
A good lawyer can help you talk through the details of the situation, guide you through the legal system, and appear in court on your behalf as you go through guardianship proceedings. Not only that, but having a reliable attorney on your side, one who knows the process well, can give you peace of mind if you have limited experience with the legal system.