Key Takeaways
- Guardianship enables minors and adults with intellectual, developmental, physical, or mental challenges to have someone to take care of their personal and financial needs.
- For adult guardianship to be granted by the court, the petitioner must prove loss of capacity.
- The court can choose from the various types of adult guardianship depending on the level of support the ward needs.
- Planning your estate and acquiring specific legal documents can allow you to determine who will be named as a guardian should the need arise.
Guardianship occurs when an individual receives the legal right to care for and make decisions for another person. The person in need of guardianship is called a ward, who can be a child or an adult lacking the capacity to make decisions for themselves.
The guardian also receives the right to manage the ward’s finances. Though the terms are often used interchangeably, guardianship is different from conservatorship. A conservatorship is more limited in scope and generally limits the conservator to handling financial matters.
Guardianship should not be confused with custody, which gives one or both parents parental rights over the child. In essence, an individual can become a child's guardian, but the parents still maintain their parental rights.
In this article, we will discuss when guardianship may be needed, types of guardianship, how to file for guardianship, and how to prevent or terminate guardianship.
Guardianship Meaning
A guardianship is a legal relationship formed to assist a person who cannot make rational decisions for themselves. This person can be a minor or a mentally challenged adult.
The guardian chosen can be a close friend, family member, local official, or a trustworthy person willing and able to cater to the ward’s needs. The guardian’s role includes caring for the ward's welfare, managing their personal or estate matters, and taking charge of their healthcare.
When Is a Guardianship Needed?
Guardianship of a child is often needed when the child's parents agree to it, the parent's rights are terminated, or the court decides that the minor should be placed in guardianship.
Courts may agree to guardianship when a parent is:
- Given a jail term
- Abusive to the minor
- Mentally or physically incapacitated
- Struggling with addiction and is in rehab
Guardianship for an adult may be necessary if the person cannot make sound decisions regarding their financial and personal well-being. The following table summarizes situations when adult guardianship may be needed.
| Adult Guardianship Scenarios | Why It's Needed |
|---|---|
| Mental illness | Impaired ability to solve problems and make rational decisions |
| Physical incapacitation (illness, injury, or advanced age) | Inability or difficulty in managing their affairs |
| Intellectual or developmental disability | Limited ability to critically analyze issues and manage their overall care |
| Dementia | Safeguard the person’s interest and ensure proper care. |
Legal Guardianship for Adults With Mental Illness
Adults with severe mental illness often require additional help to live healthy and productive lives. Without assistance, they can make irreparable personal or financial decisions or fail to care for themselves.
For such an adult to receive a legal guardian, the court must find a “loss of capacity.” States differ in their definition of this term.
Once loss of capacity is determined, the court decides the level of guardianship authority to be given—determined by the severity of the mental illness. Afterward, the legal guardian can make decisions on where the person lives and how to provide care for them.
Types of Adult Guardianships
Once an adult meets the criteria for having a guardian assigned, the next step is to choose the most appropriate guardianship type. The following are options to choose from:
- Temporary guardianship: Created to meet specific needs such as emergencies. Both parties must agree to the conditions and sign a temporary guardianship form.
- Guardianship of the person: The person assigned makes the welfare and healthcare decisions on behalf of the ward.
- Guardianship of property: Takes care of the financial aspect and ensures the ward's property is well managed and protected.
- Limited guardianship: The ward can still handle some aspects of their life but needs a guardian to handle areas beyond their ability.
- Guardian Ad Litem: A court-appointed individual who oversees the care of a minor or incapacitated adult.
A guardian’s role in adult guardianship is to support the ward’s autonomy where applicable. They should consider their wishes and empower them to gain the ability to do some things for themselves or at least feel involved in the decision-making process.
If the guardian is not fulfilling their role or supporting reasonable autonomy, consider guardianship removal by learning how to terminate a guardianship without going to court.
Get a Temporary Guardianship Form
How to File for a Guardianship
As we have seen so far, guardianship must go through a legal process for court appointment and approval. The following are the steps to take when seeking guardianship:
- Access the forms from your local courthouse under the probate division or download them online on their website.
- File a petition for guardianship in the local probate court where the person needing additional help resides.
- Serve the prospective ward with the documents and let them or those involved determine if the person needs guardianship.
- Where a child is involved, you must establish your interest as a family member, community member, social worker, or government agency.
- Attach the necessary certification listed on the form, make copies, and submit them to the court.
You will be charged a small fee depending on the method you use to submit the forms. Once approved, states like Massachusetts give you the letters for an appointment for free but charge $25 for any additional letters of appointment required.
How to Prevent Guardianship
Preventing guardianship is possible by creating an estate plan that prepares you and your loved ones for any eventualities. During this process, you need to create a healthcare advanced directive spelling out your healthcare wishes and allowing you to name the person to take charge of your healthcare decisions should you become incapacitated.
In addition, you can create a living trust that ensures someone manages and protects your finances when you become incapacitated. A power of attorney is also a helpful legal document that names the person to manage your business and make final decisions on your behalf.
Start a Power of Attorney Today
Helpful Resources:
Mass.gov - File for guardianship of an incapacitated person
Cornell Law - Guardian ad litem
Key Takeaways
- Guardianship enables minors and adults with intellectual, developmental, physical, or mental challenges to have someone to take care of their personal and financial needs.
- For adult guardianship to be granted by the court, the petitioner must prove loss of capacity.
- The court can choose from the various types of adult guardianship depending on the level of support the ward needs.
- Planning your estate and acquiring specific legal documents can allow you to determine who will be named as a guardian should the need arise.
Guardianship occurs when an individual receives the legal right to care for and make decisions for another person. The person in need of guardianship is called a ward, who can be a child or an adult lacking the capacity to make decisions for themselves.
The guardian also receives the right to manage the ward’s finances. Though the terms are often used interchangeably, guardianship is different from conservatorship. A conservatorship is more limited in scope and generally limits the conservator to handling financial matters.
Guardianship should not be confused with custody, which gives one or both parents parental rights over the child. In essence, an individual can become a child's guardian, but the parents still maintain their parental rights.
In this article, we will discuss when guardianship may be needed, types of guardianship, how to file for guardianship, and how to prevent or terminate guardianship.
Guardianship Meaning
A guardianship is a legal relationship formed to assist a person who cannot make rational decisions for themselves. This person can be a minor or a mentally challenged adult.
The guardian chosen can be a close friend, family member, local official, or a trustworthy person willing and able to cater to the ward’s needs. The guardian’s role includes caring for the ward's welfare, managing their personal or estate matters, and taking charge of their healthcare.
When Is a Guardianship Needed?
Guardianship of a child is often needed when the child's parents agree to it, the parent's rights are terminated, or the court decides that the minor should be placed in guardianship.
Courts may agree to guardianship when a parent is:
- Given a jail term
- Abusive to the minor
- Mentally or physically incapacitated
- Struggling with addiction and is in rehab
Guardianship for an adult may be necessary if the person cannot make sound decisions regarding their financial and personal well-being. The following table summarizes situations when adult guardianship may be needed.
| Adult Guardianship Scenarios | Why It's Needed |
|---|---|
| Mental illness | Impaired ability to solve problems and make rational decisions |
| Physical incapacitation (illness, injury, or advanced age) | Inability or difficulty in managing their affairs |
| Intellectual or developmental disability | Limited ability to critically analyze issues and manage their overall care |
| Dementia | Safeguard the person’s interest and ensure proper care. |
Legal Guardianship for Adults With Mental Illness
Adults with severe mental illness often require additional help to live healthy and productive lives. Without assistance, they can make irreparable personal or financial decisions or fail to care for themselves.
For such an adult to receive a legal guardian, the court must find a “loss of capacity.” States differ in their definition of this term.
Once loss of capacity is determined, the court decides the level of guardianship authority to be given—determined by the severity of the mental illness. Afterward, the legal guardian can make decisions on where the person lives and how to provide care for them.
Types of Adult Guardianships
Once an adult meets the criteria for having a guardian assigned, the next step is to choose the most appropriate guardianship type. The following are options to choose from:
- Temporary guardianship: Created to meet specific needs such as emergencies. Both parties must agree to the conditions and sign a temporary guardianship form.
- Guardianship of the person: The person assigned makes the welfare and healthcare decisions on behalf of the ward.
- Guardianship of property: Takes care of the financial aspect and ensures the ward's property is well managed and protected.
- Limited guardianship: The ward can still handle some aspects of their life but needs a guardian to handle areas beyond their ability.
- Guardian Ad Litem: A court-appointed individual who oversees the care of a minor or incapacitated adult.
A guardian’s role in adult guardianship is to support the ward’s autonomy where applicable. They should consider their wishes and empower them to gain the ability to do some things for themselves or at least feel involved in the decision-making process.
If the guardian is not fulfilling their role or supporting reasonable autonomy, consider guardianship removal by learning how to terminate a guardianship without going to court.
Get a Temporary Guardianship Form
How to File for a Guardianship
As we have seen so far, guardianship must go through a legal process for court appointment and approval. The following are the steps to take when seeking guardianship:
- Access the forms from your local courthouse under the probate division or download them online on their website.
- File a petition for guardianship in the local probate court where the person needing additional help resides.
- Serve the prospective ward with the documents and let them or those involved determine if the person needs guardianship.
- Where a child is involved, you must establish your interest as a family member, community member, social worker, or government agency.
- Attach the necessary certification listed on the form, make copies, and submit them to the court.
You will be charged a small fee depending on the method you use to submit the forms. Once approved, states like Massachusetts give you the letters for an appointment for free but charge $25 for any additional letters of appointment required.
How to Prevent Guardianship
Preventing guardianship is possible by creating an estate plan that prepares you and your loved ones for any eventualities. During this process, you need to create a healthcare advanced directive spelling out your healthcare wishes and allowing you to name the person to take charge of your healthcare decisions should you become incapacitated.
In addition, you can create a living trust that ensures someone manages and protects your finances when you become incapacitated. A power of attorney is also a helpful legal document that names the person to manage your business and make final decisions on your behalf.
Start a Power of Attorney Today
Helpful Resources:
Mass.gov - File for guardianship of an incapacitated person
Cornell Law - Guardian ad litem
Most Popular Posts
Some states require a motor vehicle bill of sale form; others do not. Even if only for your personal records, anyone who buys or sells a vehicle needs
t’s a topic that no one likes to think about. But do you know who will make decisions about your property, finances, or medical care if you...