Guardianship Resources

Nominating a legal guardian to care for their children in the event of their incapacity or death is one of a parent's most important choices. A failure to make and document their choices can lead to undesirable outcomes.

 Parents can establish legal guardianship for their minors. This is also true of adult children with developmental disabilities or older adults.

A legal guardian is different than a caregiver. Unlike a caregiver, a legal guardian has legal decision-making authority over their ward's life. A ward is an incapacitated person or minor.

There are many types of guardianships. So, anyone who wants to establish guardianship should first understand guardianships and the roles guardians play. They should also gather documentation for court filings.

Each state has its own set of laws and procedures for establishing guardianship. Anyone considering guardianship should be aware of the laws in their state.

This sub-section of FindLaw's Family Law Center contains many guardianship resources, including examples of select state guardianship laws, including:

  • Links to some state-specific legal guardianship forms
  • Suggestions for choosing a guardian for your child
  • A checklist of documents and other information you may need to gather before establishing guardianship

What is a Legal Guardian?

A legal guardian is often appointed if someone becomes incapacitated or is underage and cannot make critical decisions. The legal guardian can decide on a ward's healthcare, education, mental health, and general well-being.

Appointing a guardian is a legal process. Courts — either family or probate — appoint guardians. Guardianship proceedings start with a petition. Once the process is finalized, the court will issue letters of guardianship and a court order. The letters of guardianship will identify the guardian's decision-making boundaries.

Types of Guardianships

There are different types of guardianships. The circumstances determine the type of guardianship. For example, a minor guardianship is needed if the guardianship case involves a child under the age of majority. If the case involves property, a guardian of the estate is a choice.

Minor Guardianship

A minor guardianship is for children under age 18. Parents can name a guardian in their will. If one or both parents die, this person will care for their minor child.

Minor guardianships also apply to children in abuse and neglect cases. If there is suspected abuse and neglect in a home, the local department of human services or child protective services will remove the child from the house. Some children are placed in the foster care system and under social services' care. Other children go under the supervision of family members.

A minor guardianship can help the family member care for the child. The guardian can apply for Social Security benefits, child support, legal aid, or anything else the child needs. They can enroll the child in school and apply for more resources, such as Medicaid.

Although a guardian of a minor has significant authority, the guardianship does not terminate parental rights.

Guardian Ad Litem

Family and probate court judges will appoint a guardian ad litem in cases to protect the interests of a minor or special needs adult. The guardian ad litem will interview all parties, including the minor, and investigate all issues.

When the investigation is complete, they will report their findings and make referrals to the judge. Their report will help the court decide the child's best interests.

Adult Guardianship

Adult guardianship is for adults. This can include elderly persons, adult children with special needs, and mentally ill adults. A guardian may have authority over all decisions for the ward. For example, an adult guardian for an older adult will choose their nursing home and elder care providers. Or they may decide on limited areas of a ward's life, such as healthcare or finances.

Limited Guardianship

In limited guardianship, the guardian only makes decisions based on the ward's needs. Healthcare and finances are two common areas where guardians make decisions. The guardian's authority depends on the ward's needs. Guardianships should be the least restrictive option for an incapacitated person. Courts want wards to have as much autonomy as they can.

Limited guardianship allows for this autonomy by limiting the guardian's authority. An example of limited guardianship is an older person who needs help making medical decisions. The limited guardian has final authority over medical care decisions. The older adult makes all other decisions.

The terms guardianship and conservatorship are used interchangeably. The term used may depend on where the parties live. Like an adult guardian, a conservator makes decisions for the ward. The term conservatorship is often reserved for situations where the conservator only makes financial decisions or decisions for an estate.

Guardianships and Estate Planning

Estate planning is an optimal time to select a guardian for children; an elderly loved one, or yourself. Choosing a guardian ahead of any potential incapacity ensures the best candidate selection. If a guardian is not selected in advance, the court will decide. The court will use several factors to determine eligibility or fitness to serve.

Many people want to choose legal guardians themselves. Through the estate planning process, a person can use a will, a durable power of attorney, or a medical directive to state their choice. Each of these tools allows for direct requests. Legal tools enable the drafter to define the guardian's powers.

Get Help

Legal guardianship is a big responsibility. All parties have many issues to consider before naming or agreeing to be a guardian. Findlaw has resources to help you understand these issues and your legal rights. Seek the legal advice of a local experienced family law attorney or an estate planning attorney for specific questions.

Nominating a legal guardian to care for their children in the event of their incapacity or death is one of a parent's most important choices. A failure to make and document their choices can lead to undesirable outcomes. Parents can establish legal guardianship for their minors. This is also true of adult children with developmental disabilities or older adults.

A legal guardian is different than a caregiver. Unlike a caregiver, a legal guardian has legal decision-making authority over their ward's life. A ward is an incapacitated person or minor.

There are many types of guardianships. So, anyone who wants to establish guardianship should first understand guardianships and the roles guardians play. They should also gather documentation for court filings.

Each state has its own set of laws and procedures for establishing guardianship. Anyone considering guardianship should be aware of the laws in their state.

This sub-section of FindLaw's Family Law Center contains many guardianship resources, including examples of select state guardianship laws, including:

  • Links to some state-specific legal guardianship forms
  • Suggestions for choosing a guardian for your child
  • A checklist of documents and other information you may need to gather before establishing guardianship

What is a Legal Guardian?

A legal guardian is often appointed if someone becomes incapacitated or is underage and cannot make critical decisions. The legal guardian can decide on a ward's healthcare, education, mental health, and general well-being.

Appointing a guardian is a legal process. Courts — either family or probate — appoint guardians. Guardianship proceedings start with a petition. Once the process is finalized, the court will issue letters of guardianship and a court order. The letters of guardianship will identify the guardian's decision-making boundaries.

Types of Guardianships

There are different types of guardianships. The circumstances determine the type of guardianship. For example, a minor guardianship is needed if the guardianship case involves a child under the age of majority. If the case involves property, a guardian of the estate is a choice.

Minor Guardianship

A minor guardianship is for children under age 18. Parents can name a guardian in their will. If one or both parents die, this person will care for their minor child.

Minor guardianships also apply to children in abuse and neglect cases. If there is suspected abuse and neglect in a home, the local department of human services or child protective services will remove the child from the house. Some children are placed in the foster care system and under social services' care. Other children go under the supervision of family members.

A minor guardianship can help the family member care for the child. The guardian can apply for Social Security benefits, child support, legal aid, or anything else the child needs. They can enroll the child in school and apply for more resources, such as Medicaid.

Although a guardian of a minor has significant authority, the guardianship does not terminate parental rights.

Guardian Ad Litem

Family and probate court judges will appoint a guardian ad litem in cases to protect the interests of a minor or special needs adult. The guardian ad litem will interview all parties, including the minor, and investigate all issues.

When the investigation is complete, they will report their findings and make referrals to the judge. Their report will help the court decide the child's best interests.

Adult Guardianship

Adult guardianship is for adults. This can include elderly persons, adult children with special needs, and mentally ill adults. A guardian may have authority over all decisions for the ward. For example, an adult guardian for an older adult will choose their nursing home and elder care providers. Or they may decide on limited areas of a ward's life, such as healthcare or finances.

Limited Guardianship

In limited guardianship, the guardian only makes decisions based on the ward's needs. Healthcare and finances are two common areas where guardians make decisions. The guardian's authority depends on the ward's needs. Guardianships should be the least restrictive option for an incapacitated person. Courts want wards to have as much autonomy as they can.

Limited guardianship allows for this autonomy by limiting the guardian's authority. An example of limited guardianship is an older person who needs help making medical decisions. The limited guardian has final authority over medical care decisions. The older adult makes all other decisions.

The terms guardianship and conservatorship are used interchangeably. The term used may depend on where the parties live. Like an adult guardian, a conservator makes decisions for the ward. The term conservatorship is often reserved for situations where the conservator only makes financial decisions or decisions for an estate.

Guardianships and Estate Planning

Estate planning is an optimal time to select a guardian for children; an elderly loved one, or yourself. Choosing a guardian ahead of any potential incapacity ensures the best candidate selection. If a guardian is not selected in advance, the court will decide. The court will use several factors to determine eligibility or fitness to serve.

Many people want to choose legal guardians themselves. Through the estate planning process, a person can use a will, a durable power of attorney, or a medical directive to state their choice. Each of these tools allows for direct requests. Legal tools enable the drafter to define the guardian's powers.

Get Help

Legal guardianship is a big responsibility. All parties have many issues to consider before naming or agreeing to be a guardian. Findlaw has resources to help you understand these issues and your legal rights. Seek the legal advice of a local experienced family law attorney or an estate planning attorney for specific questions.

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Can I Solve This on My Own or Do I Need an Attorney?

  • Guardianship is always a court process
  • An attorney can help file a guardianship petition and represent your interests
  • Legal advice during the planning, court processes, and interviews is helpful
  • Your attorney can help you understand the final decision from the court

Get tailored advice for becoming or appointing a legal guardian. Many attorneys offer free consultations.

Find a local attorney

Don't Forget About Estate Planning

Once new guardianship arrangements are in place, it’s an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will. Consider creating a financial power of attorney so your agent can pay bills and make sure your children are provided for. A health care directive explains your health care decisions. It takes the decision-making burden off your children when they become adults.

Start Planning