Welcome to the Guardianship department of Divorce and FamilyLawService Center. Here we will talk about what it means to be a guardian, the different types of guardians, and the process of becoming a guardian. Lastly we will discuss how a guardianship may end.
What does guardianship mean?
A guardian is someone who is appointed by the courts through rigorous examination, or appointed in a legal document such as a will, to make decisions on behalf of another person (commonly called the “ward”) who cannot in some way make decisions for himself or herself. There are different types of guardianship including but not limited to:
- Plenary Guardianship – all decision making powers (personal and financial) over the ward are given to the guardian
- Limited guardianship – there are limited powers because the ward can make some decisions for themself but not all
- Temporary Guardianship – used in emergency situations where the need is immediate, the guardian is only for a limited time (90 days for example) depending on state law
- Successor Guardianship – would be the replacement guardian if the original guardian resigns, dies, or becomes unable to perform the duties and responsibilities
- Standby Guardianship – the court may provide a backup guardian so there is no lapse in taking care of the ward’s need
- Co – Guardianship – sometimes two people act as guardians over one ward
- Guardianship of property, also known as Conservatorship – managing the financial resources of the ward to sufficiently take care of himself or herself.
The Guardianship Process
Who Can Be Appointed Guardian?
The appointment of a guardianship is not taken lightly by the courts. The best interest of the ward are the first priority. There has to be some reason for the guardianship and incapacity of the ward must be proven. Taking control of the personal affairs of another is a very involved undertaking and a huge responsibility. The courts tend to lean towards persons with ties to the ward, especially if the ward chose this guardian in a legal document before the incapacity occurred. Spouses, parents, or other relatives with significant roles in the lives of the ward and are sensitive to the preferences and needs of the ward are also common. If no suitable relatives are in the picture, there are state employees or private persons with knowledge of the incapacity that can act as guardians. A person’s character, historical relationship with the ward, physical capacity, and other relevant facts are taken into account when choosing a ward. Limited finances or education would not automatically disqualify a potential guardian.
The Process of Guardianship
The process begins with filing a petition with the courts typically in the county in which the ward resides. The ward’s rights include notification of the petition, notification of the date of the hearing, in some cases attendance at the hearing, challenge of the petition, and an attorney. The court may allow (or appoint if the ward cannot afford one) a guardian ad litem to represent the ward’s interests in the proceedings.
It is absolutely necessary to prove the ward is incapacitated. If the ward is a minor, it is necessary to prove the parents are incapacitated. Making bad decisions is not proof enough for obtaining guardianship. A court appoints a guardian when the potential ward is incapacitated and cannot make decisions for themselves due to disease, addiction to alcohol or drugs, mental disability, or physical disability.
Once the guardian receives certified proof from the courts in the form of a “letter of office”, the guardian can make decisions for the ward. Each state has specific powers, responsibilities, and duties that come with guardianship. It is important to know the limits of power of guardianship so that lines are not mistakenly crossed. There are many administrative duties involved in these affairs. A regular inventory of the assets to be managed must be maintained. Larger financial decisions will most likely need approval from the courts.
When does a guardianship end?
Guardianship can end under different circumstances. The ward may no longer be incapacitated, has turned 18, or has died. The court can remove a guardian if there has been an abuse of power, adequate care not given, or neglect. Meticulous records should be maintained in case questions arise.