What Does my Guardianship Lawyer Need to Know?

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 What Is a Guardianship?

The term guardianship refers to legal guardianship, in which a legal guardian is court-appointed to care for another person. This legal guardian makes decisions on their behalf and assumes legal responsibility for that person. The courts have granted them the legal authority to care for their ward and their ward’s personal and property interests. Legal guardianship is generally utilized for senior citizens, developmentally disabled adults, and minor children.

Some of the decisions that a legal guardian may be entrusted with include but are not limited to:

  • Medical decisions;
  • Financial decisions;
  • Contract agreements; and
  • Other legally binding decisions.

Guardianships are governed by guardianship laws. These laws dictate who may become a legal guardian, as well as the manner in which the guardianship is to be carried out. Some examples of what courts consider when choosing a legal guardian may include but are not limited to:

  • The personal relationship existing between the ward and the proposed guardian;
  • The unique needs of the particular ward, as well as their opinion about who should be their guardian;
  • The proposed guardian’s ability to understand and meet the needs of the ward; and
  • How long the guardianship should last, such as whether it should last for a temporary or permanent basis.

A family law attorney will be part of the guardianship process to ensure all legal requirements are met. Before meeting with an attorney, it is important to be prepared as the attorney will need accurate and detailed information. You should plan on bringing:

  • The ward’s birth certificate;
  • An existing will or power of attorney;
  • Medical records documenting disabilities;
  • Criminal justice and protective services records;
  • Additional information and evidence regarding the ward’s safety and welfare; and
  • Any information you may have regarding the parents’ willingness and fitness to parent.

Although each attorney will have their own interview process, some of the most common questions to come up at a guardianship consultation are discussed below to help you prepare for the meeting.

Who Do I Need to Notify About Any Potential Guardianship?

People often think that some relatives do not need to be notified about a potential guardianship because they have not been involved in the person’s life. This is incorrect. Even if family members have been absent or involved, they are still entitled to know about any proposed guardianships.

The following people must be notified about any potential guardianship:

  • The proposed protected person, if the person is over the age of 14.
  • The person’s spouse
  • The person’s mother and father
  • The person’s maternal grandparents
  • The person’s paternal grandparents
  • The person’s brothers and sisters who are aged 14 and older
  • The person’s children who are aged 14 and older
  • The person’s grandchildren who are aged 14 and older
  • Anyone who has custody over the proposed protected person
  • Any person, officer, or care provider who has custody or control of the proposed person
    • (For example, a hospital, nursing home, or assisted living facility where the person lives)
  • If the person receives any Medicaid benefits, the Director of the Department of Health and Human Services must be notified
  • If the person receives any payments or benefits from the Department of Veterans Affairs, the office of the
  • Department of Veteran’s Affairs in the person’s state must be notified.
  • The proposed guardian must be notified if the person filing the petition is not the proposed guardian.

Who Is a Ward? What Questions Will Be Asked Regarding the Ward?

As mentioned above, a ward is a person who the court is appointing a guardian to take responsibility for. The most important factor in any guardianship is the ward and what is best for them. As such, the first question will likely be related to why guardianship is necessary. Be prepared to discuss your concerns and the details of the situation, such as why the child needs a legal guardian other than their natural parent or why an adult with disabilities needs a legal guardian to protect them.

The attorney will need to understand the parent’s fitness to care for their child, whether the parents have abandoned their child, or have lost parental rights. If you seek guardianship for an adult, be prepared to detail the adult’s incapacity and medical conditions. Bring any evidence you may have in your possession to support your claims.

A guardianship may be part of a family’s estate planning, such as noting who takes over guardianship responsibilities for any children if the parent dies while the children are still minors. In that case, you would not be petitioning for immediate guardianship; rather, you would be designating a future guardian through a will or a power of attorney. The guardian would only step in if you become incapacitated, cannot care for your child, or die.

The courts must decide what sort of arrangement is in the ward’s best interests. The following are some of the most commonly considered factors when making such a determination:

  • The age of the potential guardian (generally must be eighteen or older);
  • The physical and mental health of all parties involved;
  • The potential guardian’s willingness and ability to adequately care for the ward;
  • The potential guardian’s moral character and criminal history;
  • The ward’s emotional, developmental, and material needs;
  • The stability of the potential home environment;
  • The ward’s connection to their home, school, and community;
  • The importance of other familial relationships; and
  • The circumstances leading to the petition for guardianship.

Questions Regarding the Legal Guardian

Different laws and procedures will determine the legal guardianship process, depending on the state(s) where the potential legal guardian and ward live. Guardianship is a statutory process, meaning that state laws typically apply over federal laws. This is an important note because your guardianship may not be approved if you do not comply with the correct laws. During the initial consultation with your attorney, they will likely address your state’s specific laws.

Courts generally prefer to appoint a relative as a legal guardian. As such, the attorney will work to understand your relationship with the potential ward. This is especially true if you seek guardianship involving an older child or disabled adult, as the court may consider the ward’s wishes.

Guardianship requires caring for your ward’s financial and emotional needs, among other things. Such an arrangement can be time intensive as well as emotionally difficult. This is why before being appointed as a guardian, you generally must confirm your willingness to handle these duties as honestly and fairly as you can. Because of this, the attorney may question your family, work schedule, and financial stability.

Simply filing for guardianship does not automatically guarantee the petition’s approval. Other parties may dispute your requests, such as the ward’s parents or other family members. If you anticipate a dispute, it is imperative that you immediately notify the attorney. Additionally, if you have any information about the anticipated dispute, such as evidence that a different guardian would be unstable, you should bring it to the initial consultation.

What Attorney Do I Need for Legal Guardianships?

If you seek to obtain a ward’s legal guardianship, you will need to consult with a skilled and knowledgeable guardianship lawyer. An experienced guardianship lawyer in your area can collect all of the aforementioned evidence and information, as well as advise you on your best course of legal action. Additionally, the attorney can represent you in court at any necessary hearings.

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