What Is a Legal Guardian?

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 What Is Legal Guardianship?

The main role of a legal guardian is to act in the individual’s or minor’s best interests. Legal guardians can be relatives such as an aunt, uncle, or grandparent. A person may need guardianship due to death, incapacitation, or incarceration for a crime. Adults with severe handicaps may need a legal guardian to care for them and act on their behalf. This is referred to as adult guardianship.

In family law, guardianship usually refers to anyone assuming the legal responsibilities of caring for a child who is not the child’s parent. Sometimes, temporary guardianships may be approved, and emergency guardianships can be granted for other situations. A temporary guardianship is assigned for a specific period or a particular purpose. In some cases, an emergency may urge the court to select a guardian if the person needing care is facing an immediate risk of harm or is incapacitated and unable to make legal decisions on their behalf.

In most scenarios involving the guardianship of a child, a legal guardian must fill out the necessary paperwork demonstrating your interest in being named the child’s guardian. Afterward, you can file it with the court. The court will arrange meetings between you and the child and determine if such an arrangement would be in the child’s best interest.

A legal guardian is responsible for the child’s physical well-being and care. Additionally, they are charged with handling all major decisions for the child. It is important to note that legal guardianships usually only end when the child reaches 18, or the guardian passes away.

What are the Different Types of Guardianship?

There are several types of guardianships; below is a brief description of each. They may differ in each state; therefore, it is important to search through your jurisdiction. The guardianship over the person is the type of guardianship that means the guardian is responsible for the well-being and care of the protected person. The guardian will make influential decisions about their personal, medical, and healthcare affairs.

Furthermore, decisions will be made about where the person will reside, in the case of children, and decisions regarding school. Moreover, guardianship of the person requires the guardian to make decisions regarding the care and support of an elderly or incapacitated individual. The guardian may be mandated to consent to and monitor medical treatment, arrange professional services, monitor living conditions, and make end-of-life decisions and preparations.

When deciding on these matters, the guardian is expected to consider the ward’s wishes and desires, and their physical and financial needs. The guardianship will continue until the ward dies or until the court determines that the guardianship is no longer required.

Next is the guardianship over the estate; this type of guardianship allows the guardian to make financial decisions for the person. Court approval is typically needed to spend or sell any of the person’s assets, even after the guardianship is granted. Guardianship of the estate requires the guardian to be responsible for the ward’s personal property.

The guardian must take steps to preserve assets, protect assets, distribute income, and obtain property appraisals. The guardian must keep the court continuously informed of the estate’s status. Like personal guardianship, financial guardianship continues until the ward dies or the court determines that the individual no longer requires a legal guardian.

Another type of guardianship is that of an elderly or incapacitated individual; the courts assign guardians or conservators to protect the interests of elderly or incapacitated individuals. Because the creation of guardianship may deprive an individual of some personal rights, certain steps must be taken before a guardian is chosen. An individual has a right to notice and representation by counsel before a guardianship proceeding.

During the proceeding, the individual has the right to participate, confront witnesses, and present evidence. If the court selects a guardian, the guardian is encouraged to respect the ward’s wishes and provide the ward with as much autonomy as possible. As mentioned above, guardianship of an elderly or incapacitated individual may entail guardianship of the person, guardianship of the estate, or both.

How to Appoint a Guardian?

If you have children under 18, you may want to find a guardian and assign one in your will. A guardian also undertakes parental responsibility for children in the event of both parents’ death. This role includes looking after and making decisions for your children. Appointing a guardian is challenging and requires guidance from a legal expert in the area.

What are the Guardian’s Responsibilities?

Regarding minors, guardians act as parents, and it is their responsibility to raise and care for a child until they become adults. The role includes making decisions in the child’s best interests and managing the child’s financial assets. The guardian’s duties should be recorded in your will or with an informal letter. It should reflect your wishes regarding your child’s upbringing.

It can include choices that are related to the following:

  • Health;
  • School and education;
  • Food diet;
  • Hobbies and;
  • Religious Practice.

How is a Person Determined to be Incapacitated?

Any adult may petition the court to determine another person’s incapacity. The court then selects a committee of three members, usually two physicians and another person who can form an expert opinion on knowledge, skill, training, or education.

One of the three committee members must possess knowledge of the type of incapacity alleged in the file, and each committee member must submit a report of findings to the court. The examination of the incapacitated person usually consists of a physical examination, a mental health examination, and a functional assessment.

Additionally, the court assigns an attorney to represent the person alleged to be incapacitated. However, the alleged incapacitated person may substitute their attorney for the attorney assigned by the court. If the majority of the examining committee members decide that the alleged incapacitated person is not incapacitated in any respect, the judge is mandated to dismiss the petition.

However, if the examining committee discovers the person cannot exercise certain rights, the court then schedules a hearing to determine whether the person is totally or partially incapacitated. If a person is determined to be incapacitated in any respect, a guardian is appointed at the end of the incapacity hearing unless there are less restrictive alternatives to guardianship that address the person’s incapacity.

Is Guardianship Permanent?

The guardianship does not need to be permanent. If a ward recovers in whole or part from the condition that caused that person to be incapacitated, a petition can be filed with the court to restore the ward’s rights. In such a situation, the court can have the ward reexamined and restore some or all of the ward’s rights. A guardian may be held accountable and removed as guardian if the guardian fails to carry out the expected duties. Remember that a guardian also may resign by providing notice to the court.

When Do I Need to Contact a Lawyer?

If you are considering obtaining a guardian or want to become one, you can research the local laws and regulations regarding guardianship. If you need further assistance in a legal guardianship case, you can seek a local guardianship attorney in your area to assist you.

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