The first step to preparing for a strong guardianship case is hiring an experienced guardianship lawyer. Guardianship is an important role for any individual to take on. It is usually appointed by a probate court, but an individual can petition a family court to become a legal guardian as well.
In most situations, a ward is a minor child, a senior citizen, and/or an individual with severe mental and/or physical disabilities that prevents them from caring for themselves. In some jurisdictions, a guardianship is referred to as a conservatorship.
Usually, if an individual is petitioning to become a legal guardian for another, it is someone they care about and want to ensure their best interests are protected. The requirements and rules for guardianships will vary by state, which is why it is essential to have an attorney’s assistance.
The individual petitioning for guardianship must show why the potential ward requires a legal guardian. A court may appoint a guardian for a minor child in cases where their parents:
- Pass away;
- Abandon the child;
- Surrender their parental rights; and/or
- Cannot provide them with proper care.
It is important to be aware that in cases of minor children, the court will use the best interest of the child standard in appointing a guardian. The court will weigh many factors, including:
- The stability of the environment provided by the guardian;
- The child’s preferences;
- The ability of the proposed guardian to provide proper care to the proposed ward;
- The relationship between the proposed guardian and the child’s family; and
- Any other relevant information regarding the character of the proposed guardian.
It is also important to be aware that there are two sets of legal rights that may be awarded to a guardian. These include:
- Guardian of the person. An individual that is appointed guardian of the person is responsible for the minor’s physical and personal needs. They have the right to legally consent on the minor’s behalf. If the minor’s parents are still living, they are legally required to financially support the child. The legal guardian will be in charge of the minor’s:
- education; and
- medical needs.
- Guardian of the estate. An individual that is appointed the guardian of the estate is responsible for maintaining the minor’s financial and/or other assets until such time as they are able to do so themselves. The guardian owes the ward a fiduciary duty to responsibly manage their property.
In cases where an adult may need a guardian, it is more difficult to obtain because a court may hesitate to deprive an adult of their legal rights and/or powers as a citizen. This type of case requires a higher level of proof that the individual is unable to care for themselves. The potential ward is also entitled to due process, which includes:
- Legal counsel;
- The right to attend and hearings and/or proceedings;
- The ability to question and/or confront witnesses; and
- The right to present evidence in court on their own behalf.
Similar to minors, guardianship responsibilities for an adult may be split. It is also possible the court may determine that the individual needs a daily guardian for basic needs and medical care but is capable of handling their own legal and/or financial affairs.
What Type of Documents and Questions Should I Gather Before I Meet with My Guardianship Lawyer?
Meeting with a guardianship lawyer is the first step in the process of becoming a guardian. The process begins in court by filing the proper paperwork, usually in a family court. In these filings, the potential guardian will explain to the court why the potential ward needs a legal guardian. Many states required a potential guardian attach an approved background check to these filings.
Prior to meeting with an attorney, it is important to gather some documents. The attorney will need detailed and accurate information, including:
- The ward’s birth certificate;
- An existing will and/or power of attorney;
- Medical records documenting any disabilities, if applicable;
- Criminal justice and/or protective services records;
- Additional information and/or evidence regarding the ward’s safety and welfare; and
- Any information the potential guardian may have regarding the parents’ willingness and/or fitness to parent.
If the potential guardian has any questions about the process, it is important to make a list and bring that to the meeting. There are no silly or unimportant questions.
An attorney will draft the filings and will need information to explain to the court the basis for the request. There are certain factors the courts will examine, which will need to be addressed in those filings. These may include:
- The nature of the personal relationship that exists between the ward and the proposed guardian;
- The unique needs of the particular ward, including their opinion about who should be their guardian;
- The proposed guardian’s ability meet the needs of the ward; and
- How long the guardianship should last, including whether it should be on a temporary or permanent basis.
What Makes a Strong or Weak Guardianship Case?
A guardianship attorney will be required to address certain questions regarding the guardianship. A strong guardianship case will address the questions and issues discussed below.
The most important issue in these cases is what is best for the potential ward. Therefore, one of the most important questions to answer is why does the potential ward need a guardian. A strong case will present the answer to this question as well as why the potential guardian is best suited for the position.
Another important issue that makes a guardianship case strong is when the potential guardian can demonstrate why the biological parents are unable and/or unfit to care for their child. For an adult, a potential guardian must show the adult’s incapacity and/or medical conditions to have a strong case. It is important to share any evidence of these issues with the guardianship attorney, whether they are in the form of documents and/or statements.
The court will determine what arrangement is in the best interests of the potential ward. The court will consider the following factors:
- The age of the potential guardian, who must generally 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/or criminal history, if applicable;
- The ward’s emotional, developmental, and material needs;
- The stability of the potential home environment;
- The ward’s connection to their local home, school, and/or community;
- The importance of other familial relationships; and
- The circumstances leading to the petition for guardianship.
A strong guardianship case will be able to explain and address these issues and provide evidence of why the requested guardianship is in the best interest of the potential ward. A guardianship case that cannot provide information on these issues may be considered weak. A weak case has the potential to be denied by the court. Because of this, it is especially important to have an attorney helping with the case, since they will be familiar with the necessary elements of a strong case.
What Types of Guardianship Cases Benefit the Most from an Attorney’s Help?
All guardianship cases benefit from an attorney’s help. An attorney can be especially helpful in ensuring the petition is filed in accordance with local laws. If a petition does not follow the correct laws, it may be denied.
In most cases, courts prefer to appoint a relative of the potential ward as a legal guardian. If a guardianship case involves an older child and/or a disabled adult, an attorney will be of great assistance in crafting an argument in favor of a guardianship, especially if the potential guardian is not a relative.
An attorney will also be familiar with the requirements of the guardianship itself, which may be intense and emotionally difficult. An attorney will be able to ensure the potential guardian is up to the task as well as demonstrate that to the court.
Filing and guardianship petition does not mean it will be approved. Another party may dispute the petition, including the potential ward’s parents and/or other family members. An attorney may be especially helpful in cases where a dispute arises. If a dispute is anticipated, it is important to bring this to the attorney’s attention as soon as possible.
When Do I Absolutely Need a Guardianship Attorney?
A guardianship attorney is necessary in every guardianship case. These cases may involve the reward and/or potential removal of an individual’s rights. A guardianship lawyer can inform you of the process, your rights, and represent you and your interests every step of the way.
These cases often involve specific requirements as well as a significant amount of paperwork, which may be overwhelming to a potential guardian. An attorney will be able to assist with these issues as well as represent you during any court proceedings.