The Guardianship section of FindLaw's Family Law Center provides facts, forms, and FAQs regarding legal guardianship. Review the links below for in-depth information on laws of guardianship, when a guardian may be necessary, the process of appointing a guardian, and the differences between guardianship of a child and an incapacitated person. There are also lists of the documents and forms needed to create a guardianship.
A guardianship is a legal relationship established by the courts to allow someone (a guardian) to make decisions on behalf of another (a ward). They do so because the ward is unable to make important decisions for themselves, either because they are underage or because they are not physically or cognitively competent.
Who Can Be a Guardian?
A parent may appoint a guardian for their child in their will. An adult may choose a guardian for themselves if they are anticipating a period of incapacity. Adult family members may offer to be a guardian to a family member in need.
However the person was chosen, they will still need to be legally appointed to their role, usually by a probate court judge. The judge will consider the needs of the ward and will decide on the suitability of an adult guardian. Disqualifying factors vary from state to state, but generally include:
- If a person has filed bankruptcy in the last 7 years, they would likely not be allowed to make financial decisions.
- If the person was suspended from a professional practice that involves managing money, they would not be suitable.
- If a person has committed a crime against a person, like domestic abuse, child abuse, neglect, elder abuse, abandonment, etc., they would not be suitable.
- If a person was convicted of a felony, the judge would consider the nature of the crime when determining suitability.
If multiple people want to become a guardian — children, siblings, parents — the judge will then consider a number of factors. These could include the ward's preferences, the closeness of the relationship, the family's preferences, and any recommendations available from human services or protective services.
If no one is interested in becoming a guardian, the judge may appoint a state employee or a public guardian.
See The Basics of Guardianship for an overview of the role of guardian and who can be a guardian. See also Choosing a Guardian and Ten Questions to Ask When Choosing a Guardian to learn more about how to choose a guardian for a child or an adult.
What Types of Guardianships Are There?
The type of guardianship a judge will order depends on the kinds of decisions a guardian needs to make on behalf of the ward. That can range from ensuring the availability of life necessities like food and clothing to making healthcare and financial decisions. In some instances, a parent whose child comes into a large amount of money may choose to establish guardianship over their child's estate.
As a general rule, these are the types of guardianships:
Guardianship (guardian of the person): A guardian makes decisions regarding personal care and medical treatment. They may, in some cases, also make financial decisions.
Conservatorship (guardian of the estate): A conservator has the authority to pay bills and to handle financial matters, only. They do not handle personal affairs. (If a trust or a special needs trust has been established for the ward, trustees may also make financial decisions on behalf of the ward as they manage the trust.)
Testamentary Guardianship: This type of guardianship is created when a child's parents die and they have named a caregiver for their child in their last will and testament. That caregiver is appointed as a guardian until the child comes of age. The testamentary guardian may be a family member or a family friend.
Temporary Guardianship: A temporary guardianship is established for a specific purpose. Once that purpose has been completed, the guardianship ends. For example, if a parent went to prison, grandparents may be given temporary guardianship in order to have parental rights of decision making for a grandchild.
Limited Guardianship: Courts want individuals to have as much autonomy as possible, within their abilities. A limited guardianship is the least restrictive alternative. It limits the kinds of decisions the guardian can make to only those that the ward needs them to make at the time.
Establishing a Guardianship
Like many court proceedings, establishing guardianship can be complicated. State guardianship laws vary, and the paperwork and process may be different depending on where you live. Once you have decided who will be the legal guardian, you will need to gather documents and file forms with the court.
Click on the link for State Guardianship Forms to be connected to the forms required in your state. Also review the FAQ on Establishing Guardianship.
Fulfilling the Role of a Guardian
Once a guardian has been named, that person must now act in the best interest of the ward. They will be required to report back to the court, completing a number of required forms. Review the Documents Checklist to understand the information you need to provide, and the State Guardianship Forms for links to the required court forms in your state.
How Long Can a Guardianship Last?
The length of a guardianship depends on the type of guardianship.
- A temporary guardianship ends when the purpose of the guardianship has been fulfilled. In the example given above, it would end when the parent gets out of prison.
- A testamentary guardianship of a child would end when the child reaches the age of majority, usually 18.
- A person might be a ward with a limited guardianship if they have bouts of mental illness. When they are ill, they need their guardian to make decisions. When they are well, they can make decisions. This kind of guardianship may be needed for years.
- A guardianship of the person and a guardianship of the estate for a person with physical or developmental disabilities may continue through the ward's lifetime.
In some states, a guardianship ends automatically upon the death of the ward, but the court may require the guardian to file a final report and issue an order formally recording the termination of the guardianship. It's important to consider how long a guardianship will need to continue when you consider taking on this important role.
Legal Assistance for Guardianship Issues
Acting as a guardian for a child or adult is vitally important to the well-being of the ward. It is a role not to be taken lightly. Read through the Guardianship Resources on FindLaw and then talk to an experienced family law or estate planning attorney.
