A legal guardian is a person who has been charged with the responsibility of protecting a ward. The guardian has legal authority to care for the personal and property interests of their ward, who tend to be children whose parents can no longer care for them.
However, persons over the age of eighteen who have been declared mentally or physically incapacitated are also often granted a legal guardian. These may include seniors or developmentally disabled adults, A guardianship also refers to a court supervised legal relationship established for the benefit of the ward.
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 neither guardian abuses their power;
- 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 their own guidelines regarding guardianship. Generally, guardianship is approved and supervised by the court system. Therefore, you will need a court order to establish the guardianship. Terminating a guardianship will also need a court order.
There are various reasons why a guardianship might be terminated, including:
- The ward attains 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 invested in the welfare of the child petitions the court in order to have the guardianship removed.
No matter the reason, 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. Generally, it is necessary for a formal petition to be filed with the court in order for the termination process to begin.
Any person who is invested in the welfare of the ward is typically allowed to petition the court to have a guardian removed. Further, the guardian themselves are allowed to request a termination. No matter who requests the termination, they must prove that it would be in the best interests of the child. Although regulations vary from state to state, the decision will always be made utilizing the Child’s Best Interests Standard.
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 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 guard 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 prove to the court that the guardian is unfit or unable to perform their obligations to the ward. An example of this is the guardian misusing money that was intended for the ward’s welfare. Abuse is another valid example.
A guardian is generally selected based on who the court determines would protect the ward’s best interests. Most states rule that if a child is fourteen years or older, they may elect who will become their guardian.
Some states follow the parental preference doctrine, or 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.
All termination of guardianship, even when voluntary, requires petitioning the court. A knowledgeable and qualified children attorney will be essential in determining your options either as the guardian in need of termination, or as a party invested in the best interests of the ward and need 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 guardian ad litem could assist you in determining the best interests of a child ward.