The term guardianship refers to an important legal role that is generally appointed by the probate court. A guardianship allows a person, commonly referred to as a legal guardian, the legal ability to make personal, medical, and financial decisions on behalf of another person. This person is referred to as a ward.
In most guardianship circumstances, the ward is a child or an individual with severe mental or physical disabilities. Their condition must be such that it prevents them from being able to make decisions on their own behalf. In some states, a guardianship is referred to as a conservatorship.
Another common scenario involves a ward being a child whose parents can no longer properly care for them. There are four main types of guardianship:
- Limited Guardianship: Limited guardianship is also referred to as temporary guardianship. The court may decide that the ward is capable of making some of the decisions regarding their own care, but not all. In such a case, a guardian would be appointed temporarily to assist in the decision making process;
- Co-Guardianship: A co-guardianship occurs when two guardians are appointed to one ward. This is typically done in an effort to ensure that neither guardian abuses their power over the ward. An example of a situation in which a co-guardianship may be ordered would be when the ward is in possession of large amounts of money;
- Guardian of Property: This guardian is primarily concerned with providing or managing sufficient monetary resources in order to properly care for the ward; and
- Guardian ad Litem: The court appoints this guardian to protect and manage the ward’s interests in any legal processes that directly affect the ward.
Each state has its own guidelines regarding guardianship. Generally speaking, guardianship is approved and supervised by the court system. As such, you will need a court order to establish the guardianship. Terminating a guardianship will also need a court order.
Guardianship termination is just that: when a guardianship is terminated, by one of the parties involved or the court. There are various reasons as to why a guardianship might be terminated. Such reasons may include:
- The ward reaches the age of majority, generally eighteen years old;
- The ward gets married or adopted, or dies;
- The guardian becomes ill, incapacitated, or dies;
- The guardian renounces, resigns, or is removed by court order;
- The court determines the guardian’s assistance or protection is no longer needed; or
- A person who is invested in the welfare of the child petitions the court in order to have the guardianship removed.
Regardless of the reason for termination, a court order is necessary in order to terminate a guardianship, even if the resignation is voluntary. Because most cases of guardianship are temporary, termination is not uncommon or necessarily a negative thing. In general, it is necessary for a formal petition to be filed with the court in order for the termination process to begin.
Who Can Petition for a Termination of Guardianship, and How Is the Termination Decided?
In general, any person who is invested in the welfare of the ward will be allowed to petition the court to terminate guardianship of a minor. Furthermore, the guardian themselves are allowed to request a termination. No matter who petitions for the termination, they must prove that it would be in the best interests of the child. Although regulations vary from state to state, such decisions will always be made utilizing the Child’s Best Interests Standard. It is absolutely crucial that the ward, no matter their age or mental condition, be treated with utmost respect and dignity. Their rights must be considered above all else.
Some of the factors that may determine a guardianship resignation as being in the child’s best interests include:
- One or both parents, in the case of a minor ward, are able to effectively resume their parental responsibilities;
- The guardian is no longer the best fit for the ward due to age, illness, or infirmity;
- The resignation would be in the financial best interest, such as gain, for the ward; or
- The guardian and the ward are in disagreement over the ward’s care, and that conflict is detrimental to the ward.
If a person wishes to contest a guardianship, they will need to first prove to the court that the guardian is somehow unfit or unable to perform their obligations to the ward. An example of this would be the guardian misusing money that was intended for the ward’s welfare. Abuse, whether mental or physical, is another valid example of circumstances in which a guardianship may be terminated.
If the Termination of Guardianship Is Successful, Who Will Become the New Guardian?
A guardian is generally selected based on who the court determines would protect the ward’s best interests. The probate court decides who is qualified to be appointed as a guardian for the ward. When choosing a guardian, the court will look at multiple factors that vary by case. These typically include:
- The personal relationship between the ward and the guardian;
- The unique needs of the ward;
- The ward’s opinion about who should be guardian, if they are able to express an opinion;
- The ability of the guardian to understand and meet the needs of the ward;
- The location in which the guardian and ward live;
- Previous successful experience acting in a guardianship role;
- Possible concerns related to the intent or motives of the guardian that might not be in the best interests of the ward;
- The length of time that a guardianship is needed; and
- The opinion of the ward’s family, friends, or caretakers about who should be appointed.
Most states rule that if a child is fourteen years or older, they may elect who will become their guardian. At the very least, the ward of age would have some say in who becomes their legal guardian.
Some states follow the parental preference doctrine. This is the principle of granting a fit biological parent custody over a non-biological parent. This typically precludes the minor ward’s best interests, if the new guardianship is sought by the natural parent; and, that natural parent has not been found to have abandoned the ward, or is otherwise unfit. Potential new guardians could be responsible parents, other relatives, or someone of the ward’s choosing.
Relinquishing guardianship would require filing a petition with the court, in order to resign their position as guardian. They must announce their intent to resign from their position, and they will need to prove that their resignation is in the ward’s best interests.
Do I Need an Attorney if I Have Issues Regarding Termination of a Guardianship?
All terminations of guardianship, even when voluntary, requires petitioning the court. Well qualified and knowledgeable guardianship lawyer are essential in properly terminating a guardianship, either as the guardian in need of termination, the party invested in the best interests of the ward, or the individual wanting to contest a guardianship.
Even automatic termination, such as the ward ageing out, will require a formal court process that would be made much more simple with the aid of an attorney. Additionally, a family law attorney specializing in guardianships could assist you in ensuring the best interests of the child ward are met. Finally, an experienced attorney can also represent you in a court of law, as necessary.