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Guardianship Basics

A guardian is someone who's chosen -- either by a court or by being named in a legal document such as a will -- to make decisions for someone (generally referred to as the "ward") who can't make decisions for him or herself. The types of decisions that a guardian might make include:

  • Giving consent to medical care or treatment;
  • Purchasing or arranging for purchase of such necessities as food, clothes, cars, household items, and other personal items;
  • Arranging for education; and
  • Managing finances and bank accounts.

The following is a summary of guardianship basics, such as when guardians may be appointed, how guardians are selected, and more.

Guardianship Basics: When Guardians are Appointed

A guardianship requires that someone act on behalf of and protect the ward during the period of time when the ward is incapable of acting for him/herself. For example, the court may appoint a guardian when a potential ward is incapacitated and can't make decisions for him or herself because of a mental or physical disability, disease, or addiction to alcohol or other drugs. Taking guardianship of an incapacitated ward is an important responsibility, so it's crucial to know what powers you may hold as a guardian.

Guardians may be appointed for children as well. When a minor has no adult or other family member to make certain decisions on the minor's behalf until they reach the age of majority, a court can be asked to appoint a guardian for the minor.

Guardianship Basics: Selection of a Guardian

The selection of a guardian is an extremely important task. People with ties to the ward are preferred as possible guardians by courts. These include:

  • A person designated by the ward -- by legal document or otherwise -- to handle his or her affairs, before the period of incapacity occurred
  • A spouse
  • Parent(s) or another relative
  • A state employee or private person familiar with the ward and the incapacity at issue

Whoever is chosen by the court must be willing and able to perform the duties at hand, and to represent the best interests of the ward. In selecting the guardian, the court considers the prospective guardian's character, history, physical capacity, and other relevant attributes. A potential guardian's limited education or financial resources are not disqualifying conditions in and of themselves.

The guardianship statutes of each state detail the specific duties, responsibilities, and powers of the guardian. These statutes should be examined in order to determine the standards that apply to each situation.

Guardianship Basics: Removal of a Guardian

A guardian may be removed if a court determines that the ward no longer needs the services of the guardian. A guardian may also be removed when he or she has not provided adequate care for the ward or when it is determined that the guardian is guilty of neglect. Neglect can include using the ward's money or property for the guardian's own benefit and not obeying court orders. Upon court order, the guardian will be removed and a new guardian (or temporary guardian) will be substituted in place of the original guardian.

If you want to become a guardian (or know someone who does), you'll need to gather certain documents prior to meeting with an attorney or filing petitions with your local court.

Have Guardianship Questions? Contact an Attorney

Whether it be for a child or an adult, the selection of a guardian is an important decision not to be taken lightly. After all, a guardian will be managing most decisions, ranging from finances to medical care. After getting up to speed on guardianship basics, you may want to speak with a qualified family law attorney to ensure that you're fully informed before going forward.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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