A guardianship is a legal relationship created to protect an incapacitated person who cannot make decisions on their own. Their inability to make decisions is due to their incapacity. An incapacity includes developmental disabilities, intellectual disabilities, mental illness, and age (when a child is under 18).
The person with the incapacity is a ward or a protected person. Legal guardianship is appropriate when an incapacity prevents the ward from making decisions. In legal guardianships, the guardian makes decisions for the ward. The guardian's decision-making authority depends on the type of guardianship they hold. For example, limited guardianship has a specific purpose, such as making medical decisions only.
Parents may name a legal guardian in their will, or they may establish one if their child receives money or real property. This type of guardianship is a guardianship of a minor.
This guardianship overview includes information on the following:
- The basics of guardianships
- Different types of guardianships
- Establishing guardianships
When Is Guardianship Necessary?
Guardianships are necessary when a person cannot make decisions for themselves due to an incapacity. For example, if a child's parents die before the child reaches 18 as a minor, that child has an incapacity. They cannot make critical decisions for themselves. Minors can't enroll in school, they cannot consent to medical treatment, and they cannot make their own financial decisions.
An elderly person with dementia is another example of a person with an incapacity who needs a legal guardian. Memory loss and poor judgment are two crucial features of dementia that make a person incapable of making decisions. An elderly person may sign a power of attorney giving decision-making power to a spouse or family member for healthcare decisions. A power of attorney may be insufficient for the broad range of decisions this person may need.
Child abuse or neglect presents a third example of a situation where a guardian is necessary. In abuse and neglect cases, human or child protective services may remove a child from their parent's home. This removal is pending an investigation into the circumstances. If appropriate, the child needs an adult to make decisions, for their well-being, in the place of a parent. Although guardianship is a legal relationship, it does not terminate parental rights.
A court-appointed guardian has the legal authority to make decisions for the ward. The guardian decides about the ward's mental health care, general medical care, and finances. Guardians that make decisions about a ward's finances are also called conservators. Finances covered by a conservatorship can include all of a ward's property (real or personal property) even social security payments.
These are a few examples where guardianship may be necessary. Once a need for guardianship of the person is established, the next step is to select a guardian.
Selecting a Guardian
There are two main ways to select a guardian. The first is by naming a guardian of the person in a will. A guardian of the person named in a will is a testamentary guardian. The second is the appointment of a guardian. A probate court or a family court appoints a guardian of the person by issuing a court order.
A guardianship case begins when an interested party files a petition for letters of guardianship for court approval. Once they file a petition, the interested party must prove the ward's incapacitation. The court examines the background of a proposed guardian to determine if they can fulfill the duties of a guardian.
Often the court will appoint a guardian ad litem to represent the ward's best interests and help the court assess the ward's needs. The guardian ad litem must visit the ward and investigate all the circumstances leading to the petition. The guardian ad litem must file a factual report of their findings. They also must provide an opinion on if a guardian is necessary.
The court must determine if the appointment of a guardian is the least restrictive alternative for the ward. State laws prefer to give a ward as much autonomy as possible. Guardianships can strip away many rights from a protected person. This includes the right to marry, the right to make medical decisions, and the right to vote.
Less restrictive alternatives, such as a durable power of attorney and limited guardianships that encourage self-help, are preferable to guardianship. Guardianships must be the least restrictive choice.
Termination of a Guardianship
Many minor guardianships terminate when the ward turns 18, and many adult guardianships terminate when the ward dies. However, there are other circumstances when guardianship of a minor or an adult guardianship terminates. If the incapacity in the adult changes and the ward's physical and mental condition improves, the guardianship may end. For example, the severity of a mental illness dramatically reduces, and the ward can now make their own decisions. If the appointed guardian (of a minor or an adult) can no longer serve, then the guardianship process starts over. The court will appoint a new guardian.
How a Family Law Attorney Can Help You
Guardianships are complex. Anyone considering any guardianship should first seek legal advice. Contact a local family law attorney for advice about guardianship proceedings and your legal rights.
Learn About Guardianship Overview
- The Basics of Guardianship — A Look at the role guardians play in the lives of their wards. Learn about when guardians are appointed, how they're selected, what decisions they make, and when removing a guardian is appropriate.
- Guardianship of Minors — A guardian is often appointed to look after a minor, the property of a minor, or both. In this section, learn more about selecting a guardian for a minor and the responsibilities a guardian can handle on behalf of a child.
- Guardianship of Incapacitated Persons — When a physical or mental disability leaves a person incapacitated, a guardian is often appointed to handle the person's care and affairs. Learn about the powers of guardians and when limits on those powers are appropriate.
- FAQ: Establishing Guardianship — A collection of frequently asked questions about establishing guardianship of a child. Find answers to your questions about appointing a guardian for your child, your powers and responsibilities as a guardian, and more.
- Testamentary vs. Temporary Guardianship — An overview of testamentary and temporary guardianships. Learn about the differences between the two types of guardianships and the formation of each.
- FAQ: Guardianship of Minors — Frequently asked questions about guardianships of minor children. Here, you will find information on the role of a guardian in the life of a minor, the differences between guardianships and adoptions, and more.
Guardianship Overview Articles
Learn About Guardianship Overview
Guardianship Overview Articles
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