State Guardianship Laws: Examples
Deciding to become a guardian to a minor or an incapacitated person (called a "ward") is a big responsibility. It gives you the authority to make important day-to-day decisions on behalf of the ward that will affect their life in many ways.
The guardianship statutes of each state differ. Prospective guardians should understand the laws of their state and the specific court processes and forms they will need attain guardianship.
Below you'll find some examples of state guardianship laws. You can find a link to every state's guardianship statutes at the website of the American Bar Association.
State Guardianship Laws: Florida
The Florida statute on guardianships says that an incapacitated person should be allowed to live as independently as possible. So, when a judge approves guardianship, they are looking for the least restrictive form that meets the needs of the ward.
The ward will be encouraged to manage their finances and develop their potential for self-sufficiency. When possible, the ward may marry, vote, travel, sign contracts, complete their educational objectives, and apply for a driver's license.
- See the Florida Bar Association Consumer Pamphlet on Guardianship
State Guardianship Laws: Massachusetts
Massachusetts' statute states that the court will choose the guardian for a minor under the age of fourteen. A minor over the age of fourteen may suggest their own guardian and the court will try to honor that request, but if the court doesn't find that guardian to be appropriate, it will appoint another guardian.
A guardian of a mentally ill person doesn't have the authority to commit that person to a mental institution. Nor can they approve the administration of antipsychotic medications. A court must first find that such actions are in the best interests of the ward. The court must authorize commitment or treatment.
Parents are allowed to 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)
State Guardianship Laws: New Hampshire
A guardian will "protect and preserve" the property of a minor, as well as any income from rents, income, or the sale of property. With the court's approval, the guardian has authority to open a trust and to transfer the minor's assets into the trust. This trust would end no later than the ward's twenty-fifth birthday.
- New Hampshire Code Title XLIV, Chapter 464-A: Guardians and Conservators (New Hampshire General Court)
- Circuit Court Probate Division: Guardianships (New Hampshire Judicial Branch)
State Guardianship Laws: South Carolina
Regarding persons with disabilities, South Carolina guardianship law states that the spouse or parents of an incapacitated person can nominate a guardian for the incapacitated person in their will. When both a spouse and a parent nominate guardians in their wills, the nomination of the spouse has priority.
In South Carolina, a guardian has authority over personal decisions, not money, real estate, or valuable property. Those are handled by a conservator, who is also appointed by the probate court in the case of an adult incapacitated person. (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. If you're involved in any stage of the guardianship process, it's important to seek the counsel of an attorney experienced elder law, estate planning, or family law who fully understands your state's guardianship laws. Start the process today by contacting an experienced family law attorney near you.
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