State Guardianship Laws

Every state establishes its own guardianship laws. Guardianship grants a guardian a legal authority to make personal, medical, or financial decisions for individuals who cannot care for themselves because of age, developmental disabilities, mental health, or other incapacities.

Becoming a guardian involves significant legal responsibility that requires navigating complex state regulations. Whether you are seeking guardianship for a minor or an incapacitated adult, it is crucial to understand your legal obligations and the rights of the ward.

In this article, you will find a few examples of state guardianship laws and a reference table for state guardianship laws in all 50 states and the District of Columbia. If you have legal questions related to guardianship, contact a family law attorney. They can help you understand your duties under the state law.

What is Guardianship?

A legal guardianship is a relationship approved by the court that authorizes someone (the “legal guardian”) to make decisions for someone who is incapacitated or unable to legally make decisions on their own. The person under guardianship is known as a "ward."

Adult wards are generally under guardianship due to physical or cognitive impairments, developmental disabilities, or severe mental health issues. Minors are considered incapacitated simply because they are not old enough to legally handle their own affairs.

Guardianship proceedings begin with the filing of a guardianship petition for an incapacitated person. A court order will name the appointed guardian by the end of the court proceedings.

A guardian’s duties often relate to their ward’s health and well-being or their finances. State laws governing guardianship statutes vary from state to state. Potential guardians should understand their state laws and the guardianship process where they live.

Below you’ll find a few examples of state guardianship laws.

Florida Guardianship Laws

Florida’s guardianship laws are based on the idea 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 the least 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 if no one volunteers, a judge may appoint a guardian ad litem through the guardianship process.

Florida law encourages wards 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.

Massachusetts Guardianship Laws

Under Massachusetts’ guardianship statutes, there are two main types of guardianships:

• Guardianship and conservatorship of an incapacitated person
• 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.

Family members will often 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. However, the court can appoint a different guardian if it 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.

New Hampshire Guardianship Laws

In New Hampshire, guardianships are granted when the individual’s "functional limitations" warrant them. The state’s guardianship 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 themselves.

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.

State Guardianship Statutes

The table below contains a comprehensive overview of guardianship statutes for all 50 states and the District of Columbia:

Learn More About Local Guardianship Laws

Guardianship involves substantial legal responsibilities and obligations. These legal obligations apply regardless of whether you are seeking guardianship of a minor or an adult.

For personalized legal advice, it is best to consult with a qualified family law attorney who understands your state’s guardianship laws. They can help ensure your compliance with your local state laws while protecting the interests of all parties. Contact an experienced family law attorney near you to learn more.