Guardianship grants one person authority to make decisions for another. Gain a basic understanding of guardianship through answers to these common questions.
What Is a Guardian?
A guardian is a person who has been granted the authority to make legal decisions on behalf of another person, known as a ward, who is incapable of making such decisions on their own. A ward may be a minor, an elderly person, a developmentally disabled individual or a person who is mentally or physically incapacitated.
What Criteria Should a Legal Guardian Meet?
A person must meet several important criteria to become a legal guardian:
- They must be a legal adult
- They must be physically capable of fulfilling the responsibilities of guardianship
- They must be able to commit the time to care for the ward
- They must be able to afford care for the ward
Different Types of Guardianships
The definitions, requirements and responsibilities of legal guardianships vary by state. They may include the following types of appointments.
How Is Guardianship Established?
There are two ways to establish guardianship.
Parties that wish to request guardianship must file a petition stating their interest in obtaining guardianship. The court then conducts interviews with relevant parties, including the petitioner, and in cases involving minors, the child’s parents and occasionally the child themselves are also interviewed.
Before making a determination, the court may also order a home inspection and a criminal background check of the petitioner. Once a judge approves the petition, a court order authorizing guardianship is issued.
Parents may choose to appoint a legal guardian to care for their children in the event of their death or incapacity. Guardianship is typically established through a will, which may designate both a guardian and an alternate, who would fulfill the role if the original designee cannot.
Parents looking to appoint a legal guardian for their children may want to consider a variety of factors when deciding on the most suitable candidate:
- The candidate’s religious and moral beliefs
- The location and living situation of the candidate
- The candidate’s financial stability
- How easily the child could access other relatives
- The candidate’s personal relationship with the child or children
When Is a Guardian Removed?
When a guardian is removed depends on the type of guardianship appointed. In cases of emergency guardianship, a guardian may be appointed for as few as 72 hours. For temporary or limited guardianship, the court order may specify a time period or purpose related to the need for the guardian. Once the need has been fulfilled, the guardian’s responsibilities are removed.
Guardians may also be removed by the court for failing to perform their duties or for a breach of fiduciary responsibility. Concerned parties with compelling reasons may petition the court to request removal and/or replacement of a guardian. If a guardian is no longer needed, a request may also be made.
In the event that guardianship is contested, the court typically appoints a disinterested third party known as a guardian ad litem to investigate the necessity of guardianship and the suitability of the guardian.
Can a Court Appoint a Guardian?
Yes. There are several circumstances that may lead to a court-appointed guardian.
- Emergencies that require immediate decisions
- Children who are abandoned or orphaned
- Parental rights have been terminated
In these situations, a court may appoint a guardian who will be responsible for the best interests of the ward. In some states, a child that has reached the age of 14 can register a preference of guardian with the courts. The appointed guardian may be an adult sibling, a spouse, the noncustodial parent or another relative or responsible adult.
What Does a Judge Consider When Appointing a Guardian?
Although criteria may vary from state to state, judges typically consider several important factors when appointing a guardian, particularly when the ward is a minor.
- The child’s preference
- The relationship between the child and the suggested guardian
- Who can best provide stability for the child and can satisfy the child’s care needs
- The overall suitability of the guardian
Proof of incapacity is also required when guardianship is being requested for an incapacitated adult.
Do I Need A Lawyer If I Want to Appoint a Guardian?
Guardianship can be a complicated matter and the required paperwork can be confusing. Depending on the type of guardianship being sought, a petitioner may need to fill out numerous forms, serve documents to relevant parties, compile documentation and appear at hearings. Although legal assistance is not required to complete the process, a family law attorney can help ensure the best outcome possible for all parties.
Where Can I Find Printable Guardianship Forms?
Guardianship documents may vary by state, and many courts offer free, printable, state-specific guardianship forms and other resources online. Additional forms, including those required to terminate guardianship, may be found online at the Family Law Self-Help Center.