What is Guardianship?

Guardianship is a legal process in which a person’s rights are delegated to someone else to act on their behalf. This is a protective measure for individuals who cannot make decisions, cannot communicate decisions, or cannot act in their own best interest.

These vulnerable people may be:

• A person with an age-related decision impairment;

• A person with a traumatic brain injury;

• A person with a significant developmental or intellectual disability; or,

• A person with a substance abuse or mental health issues.

Guardianship and incapacity must be determined through a judicial procedure when a person lacks capacity to manage some or all of their property or to meet essential health, safety, or welfare requirements. If determined to be incapacitated, the court may delegate the persons rights to a guardian to act in the persons best interest while maximizing the person’s independence. Guardianship is a last resort. All other alternatives to guardianship should be explored.

The intent of guardianship is to better protect the incapacitated person while preserving the person’s rights.

Guardianship of a Minor Courts may appoint an adult guardian to care for a minor, who is not the child of the adult. Courts assign guardianships in a number of situations, including when parents have abandoned a minor, when a minor's parents have died, or when a minor's parents are incapable of providing proper care for the minor. A legal guardian may be a friend, family member, or other person the court feels will act in the minor's best interest. As the minor's legal guardian, an adult may be granted physical custody of the minor, or they may act as a financial guardian who exercises control over the minor's property. In limited cases, an adult may be appointed by the court to serve as a guardian ad litem.

• Guardianship of the person. An adult with legal custody of a minor has the responsibility to provide for the minor's physical and personal needs. While the minor's parents are legally required to continue financial support of the minor, the legal guardian must ensure that the minor receives food, shelter, clothing, education and medical care. The legal guardian has the right to consent for the minor and make all decisions regarding the minor's health and education. A legal guardian will maintain custody of the minor until the minor reaches the age of eighteen, or until a judge determines that the minor no longer needs a guardian.

• Guardianship of the estate. If a minor has a substantial amount of money or property, the court may appoint a financial guardian, or guardian of the estate, to manage and protect the minor's assets. A guardian of the estate must make all financial decisions for the minor until the minor reaches the legal age or until the minor's assets are depleted.

• Guardian ad litem. A court appoints a guardian ad litem to represent a minor's interests in a legal proceeding. Guardians ad litem are typically appointed in divorce cases, probate matters or in situations where the minor has been abused or neglected.

How to Establish a Guardianship of a Minor A court will establish a guardianship only if it is in the best interests of the child. This will involve factors such as stability in the child’s upbringing, the child’s stated preference, the ability of the proposed guardian to provide the child with proper care, the relationship between the parents and the proposed guardian, and any information regarding the moral character of the proposed guardian. Parents who foresee obstacles in appointing a certain person as a guardian might consider writing a letter of explanation to the court in support of their choice.

A hearing is usually required to review reports by a court investigator that are based on interviews with the child, the parents, and the prospective guardian, who must be an adult. You may want to name an alternate guardian in case your first choice is not approved. If the parents disagree on who should serve as a guardian, the judge will choose between their suggestions based on the child’s best interests.

More than one adult can serve as the guardians of a child simultaneously. Before taking this step, it is important to consider the possibility of disagreements between the guardians affecting your child’s future. In some cases, however, it may make sense if one adult is better able to provide the emotional support that a child needs, for example, while another is better at managing finances. Different children in the same family can have different guardians, which may be a good option if they have formed attachments to certain adults already.

Guardianship of an Elderly or Incapacitated Individual Courts appoint guardians, or conservators, to protect the interests of elderly or incapacitated individuals. Because the creation of a guardianship may deprive an individual of some personal rights, certain steps must be taken before a guardian is appointed. An individual has a right to notice and representation by counsel before a guardianship proceeding. During the proceeding, the individual has the right to attend, confront witnesses and present evidence. If the court appoints a guardian, the guardian is encouraged to respect the ward's wishes and give the ward as much autonomy as possible. As above, guardianship of an elderly or incapacitated individual may entail guardianship of the person, guardianship of the estate, or both.

• Guardianship of the person. Guardianship of the person requires the guardian to make decisions regarding the care and support of an elderly or incapacitated individual. The guardian may be required to consent to and monitor medical treatment, arrange professional services, monitor living conditions, and make end-of-life decisions and preparations. When making such decisions, the guardian is expected to consider the ward's wishes and desires, as well as their physical and financial needs. The guardianship will continue until the ward passes away, or until the court determines that the guardianship is no longer necessary.

• Guardianship of the estate. Guardianship of the estate requires the guardian to assume responsibility for the ward's personal property. The guardian must take steps to preserve and protect assets, distribute income, and obtain appraisals of property. The guardian must keep the court continuously informed of the status of the estate. Like a personal guardianship, a financial guardianship continues until the ward dies or the court otherwise determines that the individual no longer requires a legal guardian.

Is there an alternative to guardianship?

• Designation of Health Care Surrogate

• Representative Payee for Social Security and/or other benefits

• Power of Attorney

• Durable Power of Attorney

• Supportive Decision Making

• Money Management Strategies

• Joint Accounts / Account Titling

• Eldercaring Coordination

• Irrevocable, revocable, special needs, and other trusts

• Community Care and Case Management

• Voluntary Guardianship

• Guardian Advocacy

Who can be appointed guardian?

That is a legal question, but generally, a family member is preferred. If they are not available, willing, or appropriate, a Public Guardian or Professional Guardian could be appointed. Public Guardians serve individuals who do not have sufficient resources to pay for services. Professional Guardians may be appointed and compensated from the assets of the person they serve.

When Does a Guardianship End?

• The child reaches legal age (usually 18 years old)

• The ward dies

• The ward’s assets are used up (if the guardianship was set up solely to handle the ward’s finances), or

• A judge determines that a guardianship is no longer necessary

• The guardian petitions the court to resign

• The ward’s biological parents successfully petition the court to end the guardianship

How long does the guardianship process take?

While temporary or emergency guardianships may be appointed quickly within a few days after the petition is filed, it may be two weeks to as long as two months between petitioning and appointment.

Leslie Artze, Esq. of Kendrick Law Group is an experienced attorney that shows compassion for her clients through difficult times, especially when the need for a court-appointed guardian arises. If you would like to schedule a consultation with her click the link below: