A guardianship is a legally formed relationship between an appointed party (i.e., the “guardian”) and a second individual known as the “ward”. In many cases, the ward is typically a child or a minor who is below the age of majority (approximately 18 years of age in most states). However, a guardian can also be appointed for an adult who has a mental disability or becomes incapacitated due to an illness or injury.
The purpose of a guardian is to provide care and protection for the ward, as well as to make legal decisions on their behalf. Generally speaking, guardians are normally selected in one of two ways: either by a court or through a legal document called a “guardianship agreement.”
Guardianship agreements are used to transfer certain rights to the guardian that allow them to make important decisions and care for the ward. These agreements can be standalone documents, incorporated into a person’s will, or drafted as an affidavit. In some instances, the party appointing the ward may also use forms provided by a local court or other state agency.
An example of when a guardianship agreement may be needed is when the parents of a child want to ensure that their child will have someone to watch over them in the event that they are no longer able to care for them. This can happen due to reasons such as death, incapacitation, incarceration, and so forth.
Finally, it should be noted that each state has separate requirements and procedures to establish a guardianship. The terms contained in a guardianship agreement also tend to differ per agreement. The reason for this is because every ward and appointee has needs that are unique to their own personal circumstances.
Thus, even if you create a guardianship agreement using standard forms from a court, you should still consider having an attorney review the paperwork.
When Can a Guardianship Agreement be Reversed?
There are certain situations in which a guardianship agreement may be reversed or revoked. For instance, it may be possible for a guardian to get out of legal guardianship duties if they are no longer able or willing to continue carrying out the duties required to care for the ward.
Another example of when a guardianship agreement may be reversed is when the agreement expires on its own. This can happen when a guardian is only appointed on a temporary basis or if a ward’s parents wish to regain custody over their child and the court decides that this would be in the child’s best interest.
A ward may also petition the court to reverse a guardianship agreement if they believe that a guardian is not performing their duties in accordance with the agreement. Another example is when they reach the age of majority and feel that they no longer need a guardian to make decisions on their behalf.
One other way that a guardianship agreement can be reversed or revoked is if a third party petitions the court to remove the guardian in cases of abuse or neglect. For example, if a guardian is abusive towards the ward, exhibits violent tendencies, or neglects caring for the ward entirely, then a court can intervene to cancel the agreement and appoint a new guardian.
How Does the Court Decide Whether or Not to Reverse a Guardianship Agreement?
The court that initially appointed the legal guardian (usually a local family law or probate court) is also the same court that ultimately has the authority to reverse or terminate a guardianship agreement. After either the guardian, ward, or third party submits a petition for removal, the court will schedule a hearing.
At the hearing, the court will assess the situation at hand and determine whether the guardian is no longer suited to carry out the duties required by the agreement, or if the ward is old enough to make personal or financial decisions on their own without the guardian’s assistance. Depending on the facts, the court will also decide at this hearing whether a new guardian needs to be appointed to care for the ward under a new guardianship agreement.
In general, judges are typically given discretion to decide whether or not to reverse a guardianship agreement. Since each case presents unique facts, the judge will need to review evidence from any parties affected by the matter (e.g., the ward, the guardian, third parties, etc.). A judge may request to see proof like that a ward can handle their personal or financial affairs on their own, or concrete evidence that a guardian is failing to perform their duties.
Additionally, some states require a petitioner to provide a specific reason for removal. The laws in such states will give guidance on when reversal of a guardianship agreement may be appropriate. For instance, one common ground for reversal is when a guardian abuses the ward. Thus, removing the abusive guardian and appointing a new one would be in the best interest of the ward’s health and well-being.
Some other factors that a court may consider include if the guardian is convicted of a crime, commits fraud, charges improper guardianship fees, refuses to obey court orders, and/or mishandles a ward’s finances and assets.
What Are the Steps to Reverse a Guardianship Agreement?
The steps to reverse a guardianship agreement will depend on the individual requesting the reversal as well as on the laws of the jurisdiction where the request is being submitted. In general, most cases are initiated by filing a petition to terminate guardianship with the same court that appointed the current guardian.
A petition to terminate guardianship is a legal document that asks the court to reverse the agreement and to revoke the rights that a guardian has over the ward. There may be other documents that must be submitted along with the petition, but this will be contingent on both state law and local court rules.
For instance, some courts will ask for evidence at this stage that shows a parent is fit to have their child returned to them (e.g., bank accounts, rehabilitation certificate, a stable home environment, etc.).
Once all the paperwork is filed with the proper court and the applicable filing fees are paid, the petitioner will need to obtain stamped copies of their submission from the court clerk. The petitioner must then mail the stamped copies to any interested parties (e.g., the guardian). The petitioner should also retain one copy for themselves.
After these documents are mailed, the petitioner must file proof service with the court. The clerk will then schedule a court hearing that the petitioner must attend. As previously mentioned, the court will decide whether reversing the guardianship agreement is in the best interests of the ward at this hearing.
If it is, then the court will issue an order to reverse or revoke the guardianship agreement. If it is not, then the petitioner will have a right to appeal the court’s decision.
Lastly, it should be noted that the steps to terminate an adult guardianship may differ from the ones required to reverse a guardianship for a child ward.
Do I Need a Lawyer to Reverse a Guardianship Agreement?
Although it is possible to reverse a guardianship agreement, doing so is not always the easiest process. This is because guardianship agreements are viewed as extremely delicate legal arrangements since they provide instructions on how to care for individuals who are considered vulnerable in the eyes of the law; namely, children and incapacitated adults.
A guardian is also typically appointed by either a court or a close family member, meaning the person selected is in all likelihood someone that can be trusted and appears that they would be loyal to the ward. This is why removing a guardian may be difficult. Therefore, if you wish to petition the court to reverse a guardianship agreement, it is strongly recommended that you speak to a local guardianship lawyer before you file any paperwork for removal.
An experienced guardianship lawyer can help you draft, review, and submit the petition to the proper court for approval. Your lawyer can also provide legal representation during any court proceedings, such as if the guardian or another party challenges your petition to reverse the guardianship arrangement.
In addition, your lawyer can also assess the odds that your petition will be granted and can provide guidance on what other measures you can take in the event that it is denied.