What Is a Guardianship?
Key Takeaways
- Guardianship allows someone to make important decisions for someone who can’t make them, like a child or someone with a disability.
- The rules for who can be a guardian and how to become one differ in each state.
- You might need to go to court to get guardianship, and sometimes it’s included in parents’ wills for their children.
We do many things to support and care for our loved ones. Sometimes, that means gaining or giving up rights to make important life decisions for them when they cannot do so for themselves. When a person, whether because they’re a minor or have a legal incapacity, cannot reasonably care for themselves, they may be appointed a guardian. In these circumstances, they will become a ward of that guardian.
Contact a local guardianship attorney if you have questions about guardianship or whether a family member or loved one may need a guardian. Laws governing the process and the factors for establishing guardianship vary from state to state, and determinations are very fact-specific.
Different Types of Guardianship
When someone mentions “guardianship,” they’re usually referring to a guardian or guardianship of the person. This is the legal appointment of a caretaker to provide for someone unable to fully care for themselves. The appointment of a guardian usually requires a court order or court approval.
A guardian is generally tasked with maintaining the person’s personal care, affairs, medical care, and medical treatment. They may also be tasked with maintaining personal property and representing that person’s rights.
Courts will assign guardianships to children whose parents have passed away or are unable to take care of their kids, or guardians can be assigned to adults with certain disabilities or age-related cognitive decline.
There are also guardians of estates. These may be implemented when a person becomes responsible for the care, upkeep, legal, and financial matters related to property and other assets on behalf of someone who doesn’t have the legal or mental capacity to do it themselves. Often, the guardians of a person and the guardians of an estate for a case are the same people, but not always.
Guardians must be at least 18 years old and U.S. residents. They must be “of sound mind” and can’t have a disability that could impact their role as a caregiver. They usually can’t have a criminal record of violence, threat, or physical or sexual abuse against a disabled person, older adult, or child.
Specific requirements and limitations for guardianship vary from state to state.
Guardianship of Children
If you or the courts are unable to care for your children, you or the courts will need to appoint a guardian. Many parents include a provision in their wills for who will take guardianship of their kids if the parents pass away.
Legal guardians are given the right to make certain decisions for the well-being of your children, such as those that affect education, health care, and finances. They are legally required to act in the best interests of your kids.
Parental rights don’t stop when guardianship begins; the parent or court can often revoke guardianship. The revocation may happen if a parent battling an incapacitating illness temporarily gave guardianship to a family member but has since recovered, for example. If uncontested, the parent, guardian, and the children, if they’re over 14, will need to formally sever the guardianship and sign an agreement.
If a guardian was court-appointed because of a parent’s legal problem, like neglect or substance abuse, the parent typically needs to petition the court to terminate the guardianship and resume their role as caretaker. They’ll need to go before a judge, explain why they should have their children back, and answer questions the judge asks. The parent usually needs to have taken active steps to rectify the problem that led to the guardianship, like attending parenting classes or a rehabilitation program.
A guardian ad litem is a person appointed to represent a minor child during a court hearing or family law case. Generally speaking, guardianship usually terminates when a child turns 18. In some cases, a guardian may adopt the child to fully sever the original parental rights and become the child’s legal parents. However, this is a separate legal process.
Guardianship of Adults
Sometimes, even a person who is legally an adult may still be unable to make significant health and financial decisions for themselves. When that happens, loved ones may act as appointed guardians to protect them and their interests. Adult guardianship is common when adults have developmental disabilities. Either the person seeking to become the guardian or the one seeking to become a ward may petition the court for guardianship.
Incapacitated Adult Children
Parents of adult children who have certain physical or mental limitations may choose to get guardianship of their kids if those kids can’t reasonably or legally consent to major decisions that impact their lives. While parents most commonly petition for these rights, other eligible guardians may also file for guardianship of disabled adults.
If the adult you’re seeking guardianship over wants to contest the guardianship, they can; they have a legal right to object. If they do, the court will need to determine whether guardianship is in their best interest. The court will consider the guardian’s qualifications and abilities to care for the ward and the ward’s ability to make sound legal and financial decisions. Medical records, recommendations from doctors or counselors, and other documentation may be required to evaluate the case.
Elderly Parents
Suppose you’re an adult child and your elderly parent is experiencing cognitive decline. In that case, you may need to step in as a guardian to take care of necessary medical and financial decision-making your parent can no longer perform.
You may file a petition with the court to gain guardianship over your parent. You’ll have to demonstrate that you are more capable of making important decisions for your parent than they can make for themselves. If your parent is still of sound enough mind but anticipating incapacitation, they may file themselves. If your parents file, they’ll need to prove they are making this choice willingly and are fully aware of the consequences.
Seek the Help of a Lawyer
Planning for future incapacitation is a critical conversation that adult children should have with their parents in advance. This way, children are more prepared to make medical, legal, financial, and end-of-life decisions for their parents that are in line with their parents’ wishes. Family court can be challenging to navigate, especially in a guardianship case. A guardianship lawyer can help you determine if guardianship is appropriate and, if so, advocate for establishing one.
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