Guardianship and Conservatorship Law

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What is a Guardianship?

There are many things we do to support and care for our loved ones. Sometimes, that means gaining or giving up rights to make important life decisions for them. When a person, whether because they're a minor or have a legal incapacity, cannot reasonably take care of themselves, they may be appointed a guardian. In these circumstances they will become a ward of that guardian.

Different Types of Guardianship

When someone mentions "guardianship," they're usually referring to the legal appointment of a caretaker to provide for someone unable to fully care for themselves. Guardians can be assigned 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, and they usually can't have a criminal record of violence, threat, or physical or sexual abuse against a disabled person, elderly person, or child.

Specific requirements and limitations for guardianship vary state to state.

Guardianship of Children

If you're 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, like those that affect education, health care, and finances. The guardians have a legal requirement to act on the best interest of your kids.

Parental rights don't stop when a guardianship begins, and guardianship can often be revoked, either by the parent or the court. 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 the age 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 for a case of 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.

Generally speaking, a 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 legal parents of the child. This is a separate legal process.

Guardianship of Adults

Sometimes, even a person who is legally an adult may still be unable to make major health and financial decisions for themselves. When that happens, loved ones may step in as guardians to protect them and their interests. Either the person seeking to become the guardian or the one seeking to become a ward may petition the court for the 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 it's most commonly parents petitioning 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 if guardianship is in their best interest or not. 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

If you're an adult child and your elderly parent is experiencing cognitive decline, you may need to step in as a guardian to take care of important medical and financial decisions your parent is no longer capable of making.

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 parent files, they'll need to prove they are making this choice willingly and are fully aware of the consequences.

Planning for future incapacitation is an important 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 what their parents would want.