A legal guardianship arrangement is one in which an adult acts as the legal custodian for another individual. That individual is typically someone who lacks legal capacity, or ability, to make their own legal decisions. Such individuals include minors, and individuals whose physical or mental health renders them legally incapacitated.
The legal guardian, who is appointed by a court, makes these decisions on behalf of the other individual. The law typically refers to the other individual as a ward.
How is a Legal Guardianship Created?
To be eligible to be a guardian, an individual must be an adult who wishes to assume legal responsibility over another person. The adult must file a petition with a family court to institute guardianship proceedings. Once the petition has been filed, the family court judge will schedule a hearing.
During the hearing,the court may inquire as to whether the would-be guardian has any medical or financial issues (such as insufficient income) that might make the person unable to perform guardianship duties. During the hearing, the court will also ask the person seeking to be the guardian about the nature of their relationship with the ward. The court will inquire as to whether the adult’s interest in guardianship is sincere and legitimate. At the hearing, the ward is usually represented by an attorney. The attorney may present evidence that the person seeking to be the guardian is not a suitable individual for one or more reasons.
Courts will base their guardianship decision on the evidence and arguments presented. Courts also base their decisions on the laws that apply to the type of guardianship arrangements they are asked to approve.
For example, when someone seeks to be the guardian of a minor, the courts will apply a legal standard known as the “best interests of the child” standard. Under this standard, a court will make the decision with the main goal of fostering the minor’s physical and mental health, security, and development.
What are Some Examples of Guardianship Arrangements?
Guardianship arrangements can take a variety of forms. In addition to guardianships over a minor, guardianships may include:
- Adult guardianships: An individual may seek to be the guardian of an adult if that adult has a physical or mental disability that might compromise the person’s ability to make legal decisions for themselves. An individual may also seek to be the guardian of an adult who is afflicted with a memory disorder, such as dementia or Alzheimer’s disease.
- Temporary guardianships: An individual may seek to be the guardian of another on a temporary basis. If, for example, the parents of a minor will be out of the country for a prolonged period and will be unable to visit their child, an individual may seek court appointment as temporary guardian of that child, until the parents return.
How are Guardianship Disputes Resolved?
Disputes may arise between individuals who have forfeited guardianship rights and those who now have those rights. Forfeiture may occur when a court determines health or financial problems render a guardian unsuitable. A guardian whose guardianship has been terminated, in favor of another individual, may seek to have their guardianship restored.
To obtain restoration, the former guardian must file a petition with the family court. At the hearing, the former guardian must present evidence that they are now physically, mentally, and financially capable of caring for the child.
Can Guardianship be Modified or Terminated?
In some instances, a guardianship is automatically terminated. A guardianship may automatically terminate when a child reaches the age of majority in their state; or the child or the guardian dies. Guardianship also automatically terminates when a guardian intentionally renounces their role as guardian. In this instance, the court may appoint a different guardian.
A court may modify or terminate a guardianship for a number of reasons. These include:
- The court determines that a guardianship is no longer necessary. If a court finds that someone who lacked legal capacity to make decisions regains that capacity, the court may terminate the guardianship. In some instances, a court may terminate part of a guardianship. For instance, if a court finds the ward is now self-sufficient with respect to financial decision-making, the court may order that the guardian may only make decisions for the guardian in other areas.
- The guardian becomes physically or mentally incapacitated.
- The guardian changes residence. Lack of physical proximity to the ward can make it impossible for the guardian to make required decisions on the ward’s behalf.
Do I Need the Help of a Lawyer for Legal Guardianship Issues?
If you seek to obtain legal guardianship, or to modify or terminate a guardianship arrangement, you should contact a guardianship lawyer. An experienced guardianship lawyer can explain the law that is relevant to your situation, and assist you in your efforts in obtaining, modifying, or terminating a guardianship arrangement.