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Guardianship Laws FAQ: When Is Guardianship Necessary?

Caring for someone who can't decide for themselves can be challenging. Whether the person is a child or an adult, being responsible for another person's welfare can present several obstacles. Minors (people under 18 in most states) need a legal guardian if their parents are unable or unwilling to care for them. Minors need an adult with legal authority to consent to routine healthcare procedures, make financial decisions, and enroll in school. If a biological or even adoptive parent cannot care for a minor child, options are available to ensure an adult can provide care. Legal guardianship of the child is often the most viable option.

Guardians of the person (adult guardians) are necessary when an adult (ward) can't make decisions for themselves. This can be due to incapacity, mental illness, or intellectual disability. Once guardianship is in place, the guardian is responsible for making legal decisions related to the welfare of the ward. While the guardian can share decision-making, the final authority belongs to the guardian. Under guardianship, the adult's guardian must make all medical and financial decisions and seek legal advice for the ward.

You likely have a lot of questions. When is a guardianship necessary? How do I get one? What happens if I don't create a guardianship? Below, FindLaw answers a few frequently asked questions about when you do and do not need to establish guardianship.

When Is Legal Guardianship of the Child Necessary?

There are many circumstances when legal guardianship of a child is necessary. An incarcerated parent may ask a family member to care for their child. Legal guardianship makes it easier for the family member to manage the child's financial affairs, enroll them in school, or take them to the doctor. They can also get social security benefits for the child. The proposed guardian files the petition for legal guardianship first. The court will then create a guardianship case and schedule a hearing. If approved, the court then orders the appointment of a guardian.

In some instances, child protective services may remove the child from the home with a parent when there is actual or suspected abuse or neglect. This is for the well-being of the child. Parties may then initiate a guardianship case in court. A family member or a close family friend may want to be the legal guardian. The guardianship process remains the same. A petition for legal guardianship must be filed before anyone can be the child's legal guardian.

A guardianship of a child will end when the child reaches 18 years of age or if there is a material change in circumstances that allow for custody to return to the child's parents.

When Is Legal Guardianship of an Adult Necessary?

Adults can become incapacitated in several ways. A person born with intellectual or developmental disabilities transitions into adulthood. A loved one loses their memory as they grow older. The adult may have a severe mental illness. Physical illness or disability are other reasons for incapacity. In each instance, an incapacitated adult needs protection and assistance with making legal decisions on their own. Legal guardians appointed to care for an adult have strong decision-making powers.

They make decisions about the adult's healthcare and medical treatment. They decide about the adult's needs and well-being, such as where they will reside. They can also manage the adult's financial affairs (guardian of property). They may also have the power to make decisions about estate planning.

Seeking legal advice from an elder law attorney is wise if the protected person is of advanced age.

A Child Is Living With Me, and I Am Providing All Their Care — Should I Establish a Guardianship?

It depends on how long you plan to care for the child. Guardianship may be unnecessary if the child will live with you for a short time. Any longer than that, and you should consider guardianship. As a legal guardian, handling specific tasks on the child's behalf will be much easier. These include enrolling them in school and obtaining medical care. It also includes registering them for social security and making financial decisions.

Without guardianship, you will have fewer legal rights if their parent attempts to regain custody. There's no guarantee that guardianship will allow you to continue caring for the child if their parent wants them back. Still, it does offer some level of permanency in the current situation. Legal guardianship can ensure that what is in the child's best interests is considered if a parent requests the child's return. Ultimately, a judge reviews the fitness of the guardian and all caregivers, and the decision is not subject to the whims of the parties.

Do Parents Have To Establish Guardianship Over Their Children's Property?

Yes, in some instances, they do. When a minor child comes into large amounts of income and assets, parents must often establish guardianship of property (conservatorship). A guardian of property is a legal guardian who manages the income or assets on behalf of the minor child. A parent must file a guardianship (conservatorship) petition before managing these assets. This protects the parents and the child from any misuse of income or assets.

What Are the Benefits of Establishing Guardianship of Property?

A guardianship of property (conservatorship) is one type of guardianship. It is essential for two reasons:

  • It gives the party who gave the child property freedom from liability if the child's parents misuse their child's assets
  • The guardians are accountable to the court for handling the ward's assets.

When a child receives valuable assets, perhaps through a will, they are often too young to manage their property or financial affairs. A bank could transfer the property to the parents. That could expose the bank to liability. It could also be easy for the parents to misuse the property. The same concept also applies to protecting the assets of an incapacitated adult.

After establishing guardianship of property (conservatorship), guardianship laws lower the liability of the bank or executor. The guardian must also prove to a court that they have made wise financial decisions. The court will order an insurance policy (bond) offering more protection to the child or incapacitated adult.

Are There Alternatives To the Guardianship of Property?

Establishing guardianship of property (conservatorship) can protect a minor or incapacitated adult's assets. It can also be an expensive, time-consuming process. It is a court-appointed position requiring a court order.

Most states have recognized this and enacted laws that make it easier for parents to manage gifts made to their children. These gifts are usually under a certain amount. A gift-giver can name someone to manage the gift until the child comes of age. This process doesn't need any court intervention. The most significant amount of the gift varies from state to state, so be sure to check the laws where you live.

An adult should consider naming someone to manage their finances in a durable power of attorney before incapacity. A durable power of attorney helps plan for mental decline. It is also helpful for any emergencies that may arise. This should eliminate the need for any court hearings or guardianship proceedings.

Learn More About Your State's Guardianship Laws From a Qualified Attorney

Guardianship is a necessary legal process that has implications for the parties involved. Legal guardians make decisions related to healthcare, finances, and personal property. A qualified attorney can help you navigate the guardianship process.

If you want to become a guardian or know more about the guardianship laws in your state, you should speak with a qualified elder law or family law attorney in your area.

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