What is Legal Guardianship?
A legal guardianship is established when one person (the "guardian") is given the authority to make decisions for and exercise control over the assets of another person (the "ward"). Legal guardianship can apply to minors, other legally incapacitated individuals, or to an adult who is temporarily unable to care for their own needs. In general, people seek all types of legal guardianship when an individual lacks the physical or mental capacity to care for themselves.
The most common form of legal guardianship is for minor children . Parents have a duty to care for their children until their 18th birthday. If one or both parents are unable to resume their parental duties (due to a disability or death), a legal guardianship provides the court-sanctioned authority to manage the minor’s upbringing and property until he or she is old enough to take on those responsibilities.
In addition to minors, legal guardianship can extend to individuals who are physically or mentally incapacitated. A legal guardianship may be ordered if an adult cannot care for their personal needs or manage their property and affairs. For example:
Determining the Necessity of Legal Guardianship
When assessing the need for legal guardianship, the key question is whether an individual can make decisions independently. If not, a legal guardian will be required. If the incapacitated individual does not have the capacity to appoint a power of attorney, a guardian must be appointed. Users should also understand that even minors who have reached the "age of majority" — which is the age at which an individual is considered an adult — may require a guardian. This is generally the case when the individual has a mental or physical disability that prevents them from making decisions themselves.
Some categories of individuals who may require guardianship include the following:
In addition to minors, adults of any age may require guardianship if they are no longer able to make their own decisions. Some of the reasons for mental incapacity that may call for the appointment of a legal guardian include:
How to Assign Legal Guardianship
In California, the procedure for obtaining legal guardianship begins with filing a petition with the probate court located in the county where the proposed ward currently resides. Depending on which county you petition, the court will typically require the following documentation: Once the petition is filed, the court will schedule a hearing and appoint the guardian ad litem to assist in the case. The guardian ad litem will prepare an investigation report, which includes information regarding the proposed guardian, the proposed ward, and any family members that will be affected by the assignment of legal guardianship. The investigation will also ensure there are no background issues that may prevent the proposed guardian from being an appropriate custodian of the child. At the hearing, the judge will review the investigation report, hear testimony, and possibly speak with the proposed ward if they are age appropriate. The judge will then decide whether legal guardianship is in the best interests of the child. If the judge approves the legal guardianship, the assigned guardian will have the same rights of a parent when it comes to making health care and educational decisions for the child, as well as the right to enroll the child in school, give consent for medical treatment, and control visits with the child.
Legal Expectations and Requirements
The legal requirements for granting guardianship can vary based on a multitude of factors, including the age of the ward, the qualifications of the prospective guardian, the intent of the court, and the governing laws of the jurisdiction in which the petition is filed. For an adult, the requirement that the guardian demonstrate competence to manage the ward’s affairs is paramount. The courts prioritize a guardian’s ability to show clear evidence of understanding their fiduciary role, the extent of the ward’s assets, and how best to manage these assets for the benefit of the ward. In most cases, this necessitates a background check and sometimes a bonding of the assets under the guardian’s control. The age of the ward also affects the requirements for granting guardianship. For an adult, the court must be convinced that the ward is either unable to meet his or her own needs (and would not be able to do so even with reasonable accommodations), or that the ward has revoked their power of attorney due to fraud or undue influence. For a minor, the requirements for guardianship are less stringent and focused on the well-being of the child rather than the competency of the guardian. The court must find that the person seeking to become guardian is of the right age (usually at least 18 years old), of good moral character, and is not disqualified for any other reason to serve as a guardian.
Each state has its own set of procedural rules for granting guardianship, including filing a petition with the surrogate’s court, notice requirements, and hearings. In some cases, a guardianship can be granted on an emergency basis, albeit with more stringent reporting requirements, while in others, the court may schedule multiple hearings to address specific areas of concern and provide ample opportunity for interested parties, such as immediate family members or close friends, to address the court and raise objections.
Guidelines for Court Appearance
Once the petition is submitted and all conditions are met, you can anticipate a hearing date as per the timelines set by your local jurisdiction. Some jurisdictions may require an additional step by having the guardianship evaluator meet with you and the proposed ward before the date of the hearing. During this meeting, you will go over various topics that include relevant medical information and evidence on the nature of the impairment, your relationship to the ward, recommendations for a guardian, and your recommendations as to what actions the court should take. During the meeting, the evaluator may ask questions and consider the information before submitting a report to the court that summarizes his/her findings.
On the day of the hearing, the filing party, the ward, and any other witnesses will appear in court. The petitioner must demonstrate to the judge’s satisfaction that guardianship is appropriate. While the process may vary between states , in general the judge will: If the court finds it appropriate to appoint a guardian over the proposed ward’s property, the next step involves someone coming forward to take control of the ward’s property. Often the petitioner is the preferred fiduciary. Otherwise, another person may apply for appointment. The court will schedule a hearing and conduct its own inquiry before appointing the new guardian. If there are multiple applicants, the court will select the most appropriate appointee. In most cases, if the petitioner is able to convince the court that he/she is the right person to serve as guardian, the judge will make the appointment at the hearing.
In general, you will want to convince the judge that guardianship over the proposed ward’s estate and/or property is appropriate. To do this, likely testimony may include:
Responsibilities of a Legal Guardian
When someone agrees to be a legal guardian for a minor child, the role will require that they assume certain responsibilities, in addition to their obligations as the parent. In legal terms, the responsibilities for someone who acts as a guardian will be to raise the child and look toward their general welfare. Practically, this means making day-to-day decisions about things like the child’s schooling, education, and medical care. When those decisions involve something that might be considered risky – like going away for the school year, or taking a training course in another state – it will be important to get approval from the court for the decision, since they may not have been granted the broad authority to simply act in the child’s best interests. Aside from the more legal formalities that the court will need the guardian to abide by, it is also very important to keep in mind that the role can last for years, or even indefinitely, which means that they are critical to the well-being of the child. At all times, a guardian will need to act in the child’s best interest. If there is a conflict of interest, or the health and safety of the child becomes a concern, it may be grounds for the court to revoke a guardianship, or at least ask for some sort of audit. For example, if a guardian agrees to an arrangement where the child will live with them indefinitely, and obtains custody rights, only to ship the child off to live with another family, it likely indicates that the situation is not in the best interest of the child, and the court will revoke the guardian’s authority. Any concern about the handling of the child’s finances will also require close scrutiny and ask the court to act one way or another.
Potential Obstacles and Their Solutions
Navigating the role of a legal guardian can present various challenges, especially when the rights and interests of the ward are in conflict with those of family members or other parties. One common issue arises when family members contest the decisions made by the guardian. In such cases, it is important to maintain open lines of communication and collaboration with all involved parties. Mediation can also be a useful tool in resolving disputes and ensuring that the best interests of the ward are prioritized.
Another potential challenge involves the management of the ward’s financial affairs. Guardians must act in a fiduciary role and avoid self-serving behavior. Keeping detailed records and accounts of all financial transactions is essential for transparency and can protect the guardian from allegations of mismanagement. In some situations, guardianship bonds may be required, which further safeguard the ward’s financial assets.
It is important to be aware of the legal requirements governing the actions of a guardian. Understanding the scope of your responsibilities and consulting with an attorney for legal advice can help avoid potential complications. In addition, it is recommended to have legal resources available to address any issues that may arise throughout the guardianship process.
Revocation or Transfer of Guardianship
There are a variety of reasons you might need to revoke a guardianship. If the protected person dies, for instance, guardianship is no longer needed. Based on the circumstances of the case, a protected person may also request the court to revoke or transfer a guardianship. Additionally, the court may do so of its own volition if it determines the withdrawal of a guardian is in the best interests of the protected person.
Either party may file for a withdrawal in addition to the court of its own motion if: The process by which guardianship is revoked, transferred or modified is fairly simple. One of the above parties must be able to show to the court that there is cause for the removal of the guardian. Although a judge has the discretion to act, the petitioner should still outline the basis for the petition. Once appropriate cause is shown, the judge may make changes to guardianship at the initial hearing or by a later order based on the circumstances of the case . While termination of guardianship is one of the simplest, and often most common, orders of the court, it is not the only alteration. Some examples of other modifications to guardianship can include: As in the case with termination of guardianship proceedings, the petitioning party should be prepared to demonstrate to the court the needs and best interests of the protected person. Reinstatement of a guardian may be ordered by the court at any time if circumstances dictate. Modifications, such as changing the level of authority a guardian has, may happen after a hearing or based on the investigation and subsequent order of the court. Guardianship can be complex and the laws surrounding the proceedings confusing. If you are in need of legal representation for guardianship proceedings, our skilled probate attorneys have years of experience in adult guardianship cases.