State Guardianship Laws: Examples

Becoming a guardian to a minor or an incapacitated adult (ward) is a big responsibility. Guardianships are necessary for a person who is incapable of caring for themselves. Some reasons include severe mental health, developmental disabilities, and being a minor.

 Guardians make decisions related to health and wellbeing (guardian of the person) or financial decisions (guardian of the property or conservator) for the minor or ward. State laws governing guardianship statutes vary from state to state.

Potential guardians should understand their state laws and the guardianship process where they live. Guardianship proceedings begin with filing a guardianship petition for an incapacitated person. A court order will name the guardian by the end of the court proceedings. Below you'll find a few examples of state guardianship laws.

Florida Guardianship Laws

In Florida, the Legislature determined that an incapacitated person should live as independently as possible. Their incapacity should not affect their basic human rights, including civil and legal rights. A judge's appointment of a guardian should be a less restrictive alternative to meet the ward's needs.

Often a family member will volunteer to be the guardian, or they may have a power of attorney to make certain decisions. But, when no one volunteers, a judge may appoint a guardian ad litem to be the guardian of the person.

Florida law encourages a ward to manage their finances and make financial decisions. The goal is always to develop their potential for self-sufficiency. The ward and the guardian, who has a fiduciary duty, share decision-making. The ward may marry, vote, travel, open bank accounts, apply for a driver's license, make healthcare decisions, and apply for social security. The ward can also own personal property and real property.

• See the Florida Bar Association Consumer Pamphlet on Guardianship

Massachusetts Guardianship Laws

Under Massachusetts' guardianship statutes, there are two main types of guardianships. The first is a guardianship and conservatorship of an incapacitated person. The second is a guardianship of a minor.

Under Massachusetts law, an incapacitated person is someone with a "clinically diagnosed condition," who has difficulty making decisions. A medical provider must certify the person's incapacity. These decisions can include physical health, mental health, and safety.

Often family members will file a guardianship petition, but this doesn't guarantee approval. For guardianship cases involving minors, the court will choose the guardian for a minor under 14. A minor over 14 may suggest their guardian, and the court will try to honor that request. But, the court will appoint a different guardian if the court doesn't find that guardian appropriate.

In cases involving minors, local departments of human services, social services, or child protective services may help make decisions about medical treatment and mental health treatment. The child's parents and family members of minors are not always the best choice for guardianship. The appointment of a legal guardian does not take away parental rights. Parents can appoint a guardian in their will, even if their child has not yet been born.

A testamentary guardian (named in a will) has the same powers and duties as one appointed by the court.

• Massachusetts General Laws Ch. 190B, § 5-101, et seq (Protection of Persons Under Disability and Their Property)

• Massachusetts General Laws Ch. 190B, § 5A-101, et seq (Uniform Adult Guardianship and Protective Proceedings Jurisdiction)

• File for Guardianship of a Minor (Mass.gov)

• Massachusetts Law About Guardianship and Conservatorship (Mass.gov)

New Hampshire Guardianship Laws

In New Hampshire, guardianships are for cases where the individual's "functional limitations" warrant it. New Hampshire's laws encourage self-reliance and rehabilitative care instead of custodial care. Anyone may file a petition for legal guardianship of an incapacitated person. The petition must include the proposed guardian's contact information and a statement explaining why the individual cannot take care of themself.

• New Hampshire Code Title XLIV, Chapter 464-A: Guardians and Conservators (New Hampshire General Court)

• Circuit Court Probate Division: Guardianships (New Hampshire Judicial Branch)

South Carolina Guardianship Laws

South Carolina's guardianship law covers full and limited guardianships as the least restrictive option for incapacitated persons. There is a heavy emphasis on preserving a person's rights. Mental illness, advanced age, or severe alcohol abuse are a few ways someone is considered an incapacitated person. Ultimately, this is a person who cannot care for their well-being. In South Carolina, a guardianship of the person has authority over personal decisions, such as medical decisions and where to live. A conservator handles matters of money, real estate, or valuable property. A probate court appoints a conservator in the case of an adult incapacitated person. A conservator is like a guardian of the estate. (If the ward is a minor, the family court has jurisdiction over guardianship and conservatorship.)

• South Carolina Code of Laws Title 62, Article 5 (South Carolina Legislature)

• Guardianship in South Carolina: FAQs From a Caregiver or Potential Guardian (South Carolina Courts)

Learn More About Your State's Guardianship Laws: Talk to an Attorney

There are significant responsibilities that come with guardianship, whether it be for a child or an adult. It is important to seek the legal advice of an experienced attorney who understands your state's guardianship laws. They would have answers to frequently asked questions. Start the process today by contacting an experienced family law attorney near you.