Guardianship

Legal guardianship is a legal relationship created when a person is unable to make rational decisions about themselves or their possessions. Sometimes called conservatorship, this legal process places a family member, close friend, local official, or anyone else suitable in the role of taking care of the individual (called a ward) in question.

A guardian will be responsible for the individual’s welfare, personal/estate matters, and healthcare.

Since guardianship takes away many of the individual’s rights, it must be considered as a last resort to maintain the ward’s welfare after other options are either unavailable or have been unsuccessful. To become a legal guardian, it’s necessary to petition the proper court and complete the necessary legal documentation.

The exact steps and papers that must be compiled vary depending on the state, so it’s important to check the state legislature.

When Is Guardianship Used?

What is legal guardianship and when is it established by the court? Legal guardianship occurs when the court deems that an individual is unable to manage their personal or financial affairs on their own. The court appoints a guardian when it feels this legal relationship is necessary for the ward’s health and safety.

Here is a list of typical scenarios when this court-supervised legal arrangement is used.

• Minor children – a child whose parents have died or are unable to care for their child or a child the court sees as at risk.
• Disabled adults – an adult who is unable to make their own medical or financial decisions or otherwise live independently.
• Elderly people – an individual with cognitive or physical decline that hinders their ability to make medical or financial decisions.
• Individuals with serious injuries – a person who is in a coma or otherwise unable to communicate due to an accident or medical condition.
• People with mental impairment – an individual who cannot manage their medical or financial affairs due to a mental health impairment or condition.

Guardianship of a Child

The guardianship of a minor child means the court appoints a suitable adult to be responsible for the child’s health and well-being. The duties include providing food, clothing, shelter, medical care, safety, physical/emotional growth, and education, among other things.

When a guardian is not the child’s biological parent, this legal status is referred to as “probate guardianship.” This status is required when a parent is no longer able to properly take care of and maintain custody of their child.

It is important to note that guardianship does not terminate parental rights.

Typically, parents retain the right to have contact with their minor child and make certain parental decisions. However, the court may choose to limit parental rights if it sees it is in the best interest of the child.

Below are some of the most common reasons why a court may appoint a guardian for a minor child.

• The parents are mentally or physically incapacitated.
• They struggle with alcohol/drug abuse or must go to a rehab program.
• They are sentenced to a jail term.
• They have been abusive to the child.
• They have to move overseas for reasons such as joining the military.

In the case that the child inherits or owns valuable property, it is also possible to set up guardianship of the minor’s estate when estate planning. This process typically involves managing the child’s money, income, and property until they turn 18.

The guardianship of a child can be established by filing papers in the corresponding court. The person filing the petition must show interest in becoming the legal guardian and pay all associated fees. They’ll also need to file a letter of consent from the parents of the child.

Read more: Guardianship Removal

Guardianship of an Adult

Guardianship is not limited to children; it can also be set up for adults who require someone else to make decisions and act on their behalf. In some states, this legal relationship is known as a “conservatorship:

Guardianship of an incapacitated adult is often due to old age, illness, or other unexpected circumstances that have caused the individual to no longer be able to take care of their own affairs. Typical examples of when the court may determine guardianship of an adult is necessary include the following.

• Age-related cognitive decline due to Alzheimer’s disease or other forms of dementia
• Existing conditions such as Down syndrome, low-functioning autism, or other developmental disabilities
• Stroke or other brain injuries
• Other illnesses or medical conditions that impair an individual

A guardian of an adult can be assigned by the court through an official order. They must file a petition and prove the potential ward’s incapacity in front of the proper court. If appointed, the guardian is authorized to make financial, legal, and medical decisions on the ward’s behalf.

States can differ on how they use the terms guardianship and conservatorship. For example, in some states, the word “guardianship” involves the care of a minor, while the word “conservatorship” applies to the care of an incapacitated adult. Also, the steps to petition for guardianship or conservatorship can vary from state to state.

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What Is the Difference Between Guardianship and Adoption?

It can be easy to confuse the guardianship of a child with adoption. The main difference between guardianship and adoption is that guardianship is a temporary and revocable legal status, while adoption is a permanent legal status that revokes previous parental rights and assigns them to the adoptive parents,

For example, although a guardian is responsible for maintaining a child’s health and safety, they are not legally required to support the child from their own income. A child’s biological parents must still financially support their child when guardianship is in place.

However, a legal adoption terminates the biological parents’ rights and responsibilities for their child and transfers them to the adoptive parents. 

Although both these types of legal relationships are similar in some ways, they are not the same. The table below compares the primary differences between these two legal concepts:

The Legal Process for Establishing Guardianship

Although they can vary somewhat from state to state, here are the basic steps for how to get legal guardianship.

• Filing of a petition: This petition must be filed with the probate court in the county where the child or adult in question lives. This document must clearly explain the need for a guardian.
• Notification of relevant parties: The court will notify all interested individuals, including the ward, parents, and other relatives, according to that state’s law. 
• Court investigation: The court will interview the individuals involved and review all evidence pertaining to the case.
• Court’s final decision: If the court rules in favor of the petition, it will appoint the guardian and outline that person’s legal responsibilities.

If the ward had a Power of Attorney (POA) already in place, the legal guardianship supersedes that previous authority. Read here for more on POA and when and how to establish one.