A guardianship is a legal relationship established by the courts to allow someone (a guardian) to make decisions on behalf of another (a ward).
By Melissa McCall, J.D. | Legally reviewed by Aisha Success, Esq. | Last reviewed April 11, 2024
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A guardianship is a legal relationship created to protect an incapacitated person who cannot make decisions on their own. Their inability to make decisions is due to their incapacity. An incapacity might include developmental disabilities, intellectual disabilities, mental illness, or age (when a child is under 18).
This section provides basic information, links to legal forms, information on important documents, and FAQs regarding legal guardianship.
Review the links below for in-depth information on the laws of guardianship. You can learn when a guardian may be necessary and the process of appointing a guardian. It is also important to know the differences between guardianship of a child and an incapacitated person.
Guardians are needed when a ward can't make important decisions for themselves. Typically this is because they are underage or not physically or cognitively competent.
The person with the incapacity is a ward or a protected person. Legal guardianship is appropriate when an incapacity prevents the ward from making decisions. In legal guardianships, the guardian makes decisions for the ward. The guardian's decision-making authority depends on the type of guardianship they hold. For example, limited guardianship has a specific purpose, such as making medical decisions only.
Parents may name a legal guardian in their will, or they may establish one if their child receives money or real property. This type of guardianship is a guardianship of a minor.
This guardianship overview includes information on the following:
Guardianships are necessary when a person cannot make decisions for themselves due to an incapacity. For example, if a child's parents die before the child reaches 18 as a minor, that child has an incapacity. They cannot make critical decisions for themselves. Minors can't enroll in school, they cannot consent to medical treatment, and they cannot make their own financial decisions.
An elderly person with dementia is another example of a person with an incapacity who needs a legal guardian. Memory loss and poor judgment are two crucial features of dementia that make a person incapable of making decisions. An elderly person may sign a power of attorney giving decision-making power to a spouse or family member for healthcare decisions. A power of attorney may be insufficient for the broad range of decisions this person may need.
Child abuse or neglect presents a third example of a situation where a guardian is necessary. In abuse and neglect cases, human or child protective services may remove a child from their parent's home. This removal is pending an investigation into the circumstances. If appropriate, the child needs an adult to make decisions, for their well-being, in the place of a parent. Although guardianship is a legal relationship, it does not terminate parental rights.
A court-appointed guardian has the legal authority to make decisions for the ward. The guardian decides about the ward's mental health care, general medical care, and finances. Guardians that make decisions about a ward's finances are also called conservators. Finances covered by a conservatorship can include all of a ward's property (real or personal property) even social security payments.
These are a few examples where guardianship may be necessary. Once a need for guardianship of the person is established, the next step is to select a guardian.
A parent may appoint a guardian for their child in their will. An adult may choose a guardian for themselves if they anticipate a period of incapacity. Adult family members may offer to be a guardians to a family member in need.
However the person is chosen, they will still need to be legally appointed to their role. This usually happens by a probate court judge. The judge will consider the needs of the ward and will decide on the suitability of an adult guardian.
Disqualifying factors vary from state to state, but generally include:
If multiple people want to become guardian, the judge will then consider several factors. These could include:
If no one is interested in becoming a guardian, the judge may appoint a state employee or a public guardian.
You can start learning about the general overview of the role of a guardian and who can be a guardian. There are important factors to consider when choosing a guardian for a child or an adult.
There are two main ways to select a guardian. The first is by naming a guardian of the person in a will. A guardian of the person named in a will is a testamentary guardian. The second is the appointment of a guardian. A probate court or a family court appoints a guardian of the person by issuing a court order.
A guardianship case begins when an interested party files a petition for letters of guardianship for court approval. Once they file a petition, the interested party must prove the ward's incapacitation. The court examines the background of a proposed guardian to determine if they can fulfill the duties of a guardian.
Often the court will appoint a guardian ad litem to represent the ward's best interests and help the court assess the ward's needs. The guardian ad litem must visit the ward and investigate all the circumstances leading to the petition. The guardian ad litem must file a factual report of their findings. They also must provide an opinion on if a guardian is necessary.
The court must determine if the appointment of a guardian is the least restrictive alternative for the ward. State laws prefer to give a ward as much autonomy as possible. Guardianships can strip away many rights from a protected person. This includes the right to marry, the right to make medical decisions, and the right to vote.
Less restrictive alternatives, such as a durable power of attorney and limited guardianships that encourage self-help, are preferable to guardianship. Guardianships must be the least restrictive choice.
The judge can order various types of guardianship. The type a judge will order depends on the decisions a guardian needs to make on behalf of the ward.
These decisions can range from ensuring the availability of life necessities like food and clothing to making health care and financial decisions.
Sometimes, a parent whose child receives a large amount of money may choose to establish guardianship over their child's estate.
As a general rule, there are five types of common guardianship legal arrangements.
A guardian makes decisions regarding personal care and medical treatment. They may, in some cases, also make financial decisions.
A conservator has the authority to pay bills and to handle financial matters only. They do not handle personal affairs.
If a trust or a special needs trust has been established for the ward, trustees may also make financial decisions on behalf of the ward as they manage the trust.
This type of guardianship is created when a child's parents die and they have named a caregiver for their child in their last will and testament.
This caregiver is appointed as a guardian until the child comes of age. The testamentary guardian may be a family member or a family friend.
Read more about the differences between testamentary vs. temporary guardianship.
A temporary guardianship is established for a specific purpose. Once that purpose has been completed, the guardianship ends.
For example, a single-parent home where the parent goes to prison. In this example, grandparents may be given temporary guardianship. This will give them parental rights of decision-making for a grandchild.
Read more about the differences between temporary vs. testamentary guardianship.
Courts want individuals to have as much autonomy as possible, within their abilities. A limited guardianship is the least restrictive alternative.
It limits the decisions the guardian can make. The guardian can only make decisions that the ward needs at the time.
Like many court proceedings, establishing guardianship can be complicated. State guardianship laws vary, and the paperwork and process may differ depending on where you live. Once you have decided who will be the legal guardian, you must gather documents and file forms with the court.
State guardianship forms are a list of the forms required in your state.
Once a guardian has been named, that person must act in the ward's best interest. They must report back to the court and complete several required forms.
Review the document checklist to understand the information you need to provide. You can find a list of state guardianship forms for links to the required court forms in your state.
Many minor guardianships terminate when the ward turns 18, and many adult guardianships terminate when the ward dies. However, there are other circumstances when guardianship of a minor or an adult guardianship terminates. If the incapacity in the adult changes and the ward's physical and mental condition improves, the guardianship may end.
For example, the severity of a mental illness dramatically reduces, and the ward can now make their own decisions. If the appointed guardian (of a minor or an adult) can no longer serve, then the guardianship process starts over. The court will appoint a new guardian.
The length of a guardianship depends on the type of guardianship. Some general legal guidelines are listed below.
A temporary guardianship ends when the purpose of the guardianship has been fulfilled. In the example given earlier in this article, it would end when the parent gets out of prison.
A testamentary guardianship of a child would end when the child reaches the age of majority. This is usually 18 in most states.
A person might be a ward with a limited guardianship if they have bouts of short-term mental illness. When they are ill, they need their guardian to make decisions. When they are well, they can make decisions on their own. This kind of guardianship may be used off and on for years.
A guardianship of the person and a guardianship of the estate for a person with physical or developmental disabilities may continue through the ward's lifetime.
In some states, guardianship ends automatically upon the death of the ward. The court may require the guardian to:
Considering how long guardianship will need to continue when you consider taking on this role is important.
Acting as a guardian for a child or adult is vitally important to the ward's well-being. It is not a role to be taken lightly.
There are guardianship resources available on FindLaw, and you can talk to an experienced family law lawyer or estate planning attorney.
Get tailored advice for becoming or appointing a legal guardian. Many attorneys offer free consultations.
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
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