We all need a little help from time to time, some of us more than others. Children and the elderly especially may need help when making big life or legal decisions. A "guardian" is someone who is chosen or appointed to make legal decisions for another person who is unable to make those decisions on their own. Guardianship is often over a child or an individual who has become incapacitated through age or disability. The "Guardianship" section of FindLaw's Family Law Center can give you some facts, forms, and answers to common questions regarding becoming or appointing a legal guardian.
This section provides in-depth information on the law on guardianships, when a guardian might be necessary, and the process of appointing a guardian. You can find answers to questions about establishing a guardianship and the differences between guardianship of a child and of an incapacitated or disabled person. There are also lists of the documents you will need to gather and links to forms necessary to create a guardianship.
Basics of Guardianship
A legal guardian is an adult who is appointed or chosen by a court to make decisions on behalf of an individual who cannot make his or her own decisions. Normally, a guardian is chosen for a minor, but sometimes a court will establish a guardian for an adult with special needs or an adult child can become an elderly parent’s legal guardian. In some instances, parents whose child comes into a large amount of money may establish guardianship over their child’s estate.
The types of decisions a guardian can make on behalf of someone (normally called the “ward”) can vary from simply arranging life necessities, like food and clothing, to making big medical and financial decisions. Therefore, the selection of a guardian is a very serious decision. A guardian can be appointed by the ward herself, perhaps in a will or power of attorney, or by someone like a parent, spouse, or other relative with close ties to the ward. In special cases, a state employee with familiarity with the person and his or her incapacity will be chosen by the court as a legal guardian.
Establishing a Guardianship
Like many legal procedures, establishing a legal guardianship is a complicated and regulated process. Once you have decided who will be the guardian, you will need to gather certain documents and file multiple forms with the court. Beyond the legal forms like a power of attorney, living will, and guardianship papers, it’s a good idea to have any financial documents like bank and investment statements and titles to personal and real property.
State guardianship laws can vary, and the paperwork and process may be different depending on where you live. However, if you are establishing a guardianship for a minor child, courts will make their decisions based on the best interests of the child. In cases where a person has pre-selected a guardian through a living will or durable power of attorney, those wishes will normally be honored.
Legal Assistance for Guardianship Issues
Establishing a guardianship can be a complicated process with serious legal consequences. An experienced family or estate planning attorney can answer questions you may have and help you with both the guardianship decision and the official procedure.