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. This section provides in-depth information on the law on guardianships, when a guardian might be necessary, the process of appointing a guardianship & A legal guardian is an adult who is chosen to make decisions on behalf of an individual who cannot make decisions for him or herself, usually a minor but sometimes an adult with special needs. The Guardianship covering the basics of guardianship; the types of decisions a guardian typically makes; common reasons for the appointment of guardians; the process of establishing guardianship; and more.
Guardianship Basics + A guardian is someone who is chosen -- either by a court or by being named in a legal document such as a will -- to make decisions for someone (generally referred to as the "ward") who cannot make decisions for him or herself.
The types of decisions that a guardian might make include::Giving consent to medical care or treatment;Purchasing or arranging for purchase of such necessities as food, clothes, cars, household items, and other personal items;Arranging for education; and Managing finances and bank accounts.
When Guardians are Appointed
A guardianship requires that someone act on behalf of and protect the ward during the period of time when the ward is incapable of acting for him/herself. A court appoints a guardian when a potential ward is incapacitated and cannot make decisions for him or herself because of a mental or physical disability, disease, or addiction to alcohol or other drugs. When a minor has no adult or other family member to make certain decisions on the minor's behalf until they reach the age of majority, a court can be asked to appoint a guardian for the minor.
Selection of a Guardian
The selection of a guardian is an extremely important task. People with ties to the ward are preferred as possible guardians by courts. These include:A person designated by the ward -- by legal document or otherwise -- to handle his or her affairs, before the period of incapacity occurred;A spouseParent(s) or another relative; or A state employee or private person familiar with the ward and the incapacity at issue.
Whoever is chosen by the court must be willing and able to perform the duties at hand, and to represent the best interests of the ward. In selecting the guardian, the court considers the prospective guardian's character, history, physical capacity, and other relevant attributes. A potential guardian's limited education or financial resources are not disqualifying conditions in and of themselves.
The guardianship statutes of each state detail the specific duties, responsibilities, and powers of the guardian. These statutes should be examined in order to determine the standards that apply to each situation.
Removal of a Guardian
A guardian may be removed if a court determines that the ward no longer needs the services of the guardian. Also, a guardian may be removed when he or she has not provided adequate care for the ward or when it is determined that the guardian is guilty of neglect. Neglect can include using the ward's money or property for the guardian's own benefit and not obeying court orders. Upon court order, the guardian will be removed and a new guardian (or temporary guardian) will be substituted in place of the original guardian.
When Is Guardianship Necessary ? + If you're caring for a child, you may not have considered establishing a legal guardianship, but it's an important step towards ensuring that the laws work for you in protecting the child's best interest. These frequently asked questions cover issues related to when you do and do not need to establish a guardianship.
I have a child living with me currently, and I'm providing all of his care -- should I establish a guardianship?It depends on how long you plan to care for the child. If the child is only going to live with you for a short time -- a few weeks or months -- then a guardianship is probably unnecessary. Any longer than that and you should probably consider a guardianship. With a guardianship in place, you will have a much easier time handling certain tasks on the child's behalf, such as enrolling him in school, obtaining medical care and registering for benefits.
Plus, without a guardianship, you will have no argument if his parent attempt to regain custody of him, even if you think that they are unfit parents. There's no guarantee that a guardianship will allow you to continue caring for the child if his parent want him back, but it definitely improves the odds.I've heard that parents sometimes have to establish guardianships over their own children's property. Is that true?
Strangely enough, it is. When children come into large amounts of money or property, parents must sometimes establish what is known as a "guardianship of the estate". This is usually only necessary when children receive money or property in excess of around $5,000, but the amount varies depending on a state's laws.
A guardianship of the estate is important for two reasons: 1) it frees people and institutions from liability if they turn the money or property over to the child's parents and the parents subsequently misuse it; and 2) it subjects the parents' management of the property to a judge's scrutiny.
When a young child receives valuable property, though a will for example, they are often unprepared for the responsibility of managing the property. If a bank or the executor of the estate simply transfers the property to the child's parents instead of the child, the parents could misuse the property and the child could be left with nothing when they reach majority. This could expose the bank or executor to a lawsuit from the child or their guardian.
If the parents establish a guardianship of the estate, however, the guardianship laws remove liability from the bank or executor. The parents will also have to prove to a court that they have wisely managed the property, which offers the child additional protection.
While establishing a guardianship of the estate can protect a minor child's assets, it can also be expensive and time-consuming to create. Most states have recognized this and enacted laws that make it easier for parent to manage gifts made to their children if they are under a certain amount. A gift-giver usually only has to name someone to manage the gift until the child comes of age. This process doesn't require the intervention of any courts. The maximum amount of the gift varies from state to state, so be sure to check the laws where you live.
Guardianship of Incapacitated or Disabled Persons + Mental and physical disability or incapacity can involve severe and long-term conditions that impose great limitations upon an individual's ability to take care of themselves, express themselves verbally, earn a living, and live independently of the care of others. Such a disability reflects the necessity for a combination of treatments and services.
Guardianships for physically or mentally disabled or incapacitated persons have, in recent decades, been understood to facilitate the independence and self-reliance of the person being looked after (called a "ward"). Guardianships are limited as much as is reasonable in order to allow wards to exercise as much control over their lives as possible while maintaining as much dignity and self-reliance as possible. The desires of the wards are given primary consideration. Also, wards are allowed to do as much of their own care-giving as is physically and mentally possible.
Powers of Guardians
The guardian will be granted only those powers necessary to accomplish for the ward what the ward cannot accomplish independently. These powers may include:Assuring the availability and maintenance of care for the ward, Making sure that educational and medical services are maintained and adequate, andSubmitting updates to the court of the ward's condition. These court updates describe the ward's living situation, status of mental and physical health based upon medical examinations and official records, provide a list of services being received by the ward, describe services rendered by the guardian, account for the ward's monetary assets, and any other information necessary to submit to the court in order for it to assess the status of the ward and the guardian's duties.
Testamentary Guardianship + Generally, parents may, in a properly drafted will, appoint or indicate their preference for a guardian for a minor child or an adult child with a disability who requires supervision over his or her person or estate. Courts will then make a determination as to the availability or appropriateness of the parents' selection.
Temporary Guardianship + Some state statutes provide for temporary or limited guardianships. These guardianships are generally granted by the courts to achieve a specific purpose for a certain amount of time. Once the purpose is accomplished, the guardianship is terminated.
Also, emergency guardianships have been granted. In these situations, an emergency situation exists and someone is needed to give approval in order for the person to receive emergency services. A temporary guardian is appointed by the court to serve during the existence of the emergency situation. Generally, the person being served by the temporary guardian is disabled or incapacitated in some way. The court must determine that the person being served by the guardian is unable to make the emergency decision because of mental disability, addiction, debilitating disease, or some other similar limitation. The court must also determine that if a guardian is not appointed, the person is at risk of serious harm or even death. Finally, the court must determine that there is no other person available who can make the emergency determination for the incapacitated person.
The order for emergency guardianship is generally granted for a short period of time which is sufficient to allow the situation to be handled properly. After the emergency situation has ended or subsided, the temporary guardian must file a report with the court detailing the nature of the services rendered by the guardian and describing the outcome of the situation.
How do you establish guardianship of a child?
You can establish guardianship of a child by filing papers in court. Initially, file a petition stating your interest in obtaining guardianship along with a filing fee. You'll also want to file a letter of consent from the child's parents.
Once you've filed your petition, the court will set up interviews with you and possibly the child, the child's parents (if they are available), and anyone else who may have an interest. In some cases, the court may order a home visit or inspection, and a criminal background check of the would-be guardian is usually conducted.
In all matters involving children, courts use a "best interest of the child" standard to make decisions. So, if after reviewing the facts presented, the court finds it is in the best interest of the child, the court will grant you legal guardianship of the child. Most states require you to sign an oath stating that you accept the responsibilities of the guardianship. Once the judge has approved your guardianship petition, she or he will give you an order to establish guardianship. Be sure to check your local government's website for instructions; some even have forms you can download, fill out, and file with the court.
Can I appoint a legal guardian for my own children?
Yes, and doing so is good planning. In case of the unfortunate event that you become unable to raise your children, you should establish a guardianship for your children with someone you trust. The best way to do this is to spell it out in your will.
Choose someone you trust and add a clause to your will that you want that person to raise your children if you ever become incapacitated. In your will, name one person as guardian and one person as an alternate (in case the first one cannot fulfill the position) for EACH of your children. It is perfectly legal to choose a different guardian for each child. You can even create more than one guardian for one child, though this has the potential to create problems should the co-guardians ever disagree. Usually, if the guardians are a married couple, this situation works out great. Just be sure to name them both in your will so that they both have legal custody and power to make decisions for your child.
When choosing a legal guardian, consider these factors:The guardian must be of legal adult age in your state (usually 18)Be sure that the legal guardian has a genuine interest in your children's welfareThe legal guardian must physically be able to fulfill the responsibilities The legal guardian must have enough time to care for your childrenHow will the other children/lack of children of the legal guardian affect your children?The guardian must be able to afford to raise your children, either through his or her own income or through assets you leave for the care of your childrenThe guardian should have similar morals to yours or those you would feel comfortable being instilled in your children
Do I need to give an explanation of my choice of legal guardian for my children?
It is always a good idea to leave a letter of explanation for any judge that may question your choice of legal guardian. As mentioned, judges will apply the best interest of the child standard, so it is a good idea to list in your letter why the guardian you chose is in your child's best interest. Listed are common issues judges consider:the child's preferencewho can provide the best stability and continuous carewho can best fulfill the child's needsthe relationship between the child and potential legal guardianthe moral character, fitness, and conduct of the potential guardian
What if the parents of the child do not consent? Can I still establish guardianship of the child?
Generally, guardianship is only granted ifthe parents consent (both parents, unless only one is available)the parents have abandoned the child or have had their parental rights terminated, ora judge finds it would be in the best interest of the child to remove the child from the parents' custody
Sometimes, certain situations will arise that allow you to obtain legal guardianship of the child despite the parents' objections. In most cases, this involves proving the parents are unfit. If you find yourself in this situation, consult an attorney for help.
Besides the parents, the child's other family members do have rights to be notified and to object to your pursuit of guardianship. Although you do not need consent from all of these relatives, their objections could be detrimental to your pursuit of guardianship of the child. If this happens, be sure to consult an attorney right away.
If I am the legal guardian, am I financially responsible for the child?
It depends. If the biological parents are still living and still have rights to the child, such as physical child custody or visitation, then they are financially responsible for the child. If their rights have been terminated, then they owe nothing towards the child's care. If you establish guardianship you can seek financial assistance, usually in the form of social security. If necessary, you can petition the court to set up a support schedule. All of the money from this support must go towards the child care, and many courts require periodic financial reports reflecting how much money was received and how it was spent. In the case where you receive guardianship via a will, many times the deceased parent will have left funds to be used for the child's care. Usually, there is a third party, like a lawyer, that monitors the spending of this fund.
How burdensome are the responsibilities of a legal guardianship?
It is not an easy task. In most cases, you are taking on all of the responsibilities of a parent. Before taking on the role, consider the following questions:Do I want the continuous responsibilities of a legal guardianship?Am I ready to accept full liability for the child's actions?Am I willing and able to manage the child's finances and provide records to the court?Am I willing to go through the court proceedings necessary to obtain permission to handle certain financial issues?Do I have the right kind of relationship with this child?Do I want to act as the legal parent of this child for the entirety of the guardianship?What is my relationship with the child's parents like?Will the parents support my guardianship, or be hostile?How will the guardianship affect my own family, health, job, life?Do I have the energy to raise a child?Do I have the time?What is my financial situation? If the child's care is funded through social security, government assistance, the parents, or assets from a deceased parent, are those funds enough?Am I willing to spend my own money on the care of this child?Are there any foreseeable problems with the child's relatives suddenly appearing to object and contest the guardianship?
Becoming legal guardian of a child is a huge responsibility with a lot to consider. Think carefully about the questions above and plan accordingly. It's always a good idea to consult a lawyer if you have any questions or need help.
Guardianship of Minor Children +These are some common questions pertaining to the guardianship of a minor !
Who or what is a guardian? A guardian is someone who takes care of a child's needs. This typically includes such things as shelter, education, food and medical care. Guardians also usually manage the finances of the child.
How do guardianships differ from adoptions?
A guardianship is a legal relationship between a minor child and a guardian that gives the guardian certain rights and obligations regarding the child. A guardianship does not sever the legal relationship that exists between a child and his or her biological parents, however. Instead, it co-exists with that legal relationship.
An adoption, on the other hand, permanently alters the legal relationship between a child and his or her biological parents. Adopted parents become the legal parents and biological parents give up all parental rights and obligations. This means that biological parents no longer owe child support, and that the child can no longer automatically inherent from his or her biological parents.
How do guardianships end?
Several events typically trigger the end of a guardianship: The death of the child The child reaches the legal age of majority, typically 18 in most states A judge determines that a guardianship is no longer necessary or beneficial for the child The sole purpose of the guardianship was to manage the child's finances, and the child's financial assets are exhausted.
Guardians can also ask a court to be relieved of his or her guardianship, at which point the court will appoint a new guardian.
What does the term "guardian ad litem" mean?
Guardians ad litem are court-appointed representatives who stand in the shoes of the minor during court proceedings that involve the minor in some way. This is common in divorces and disputes regarding estates, or any other situation where the court determines that the minor (or incapacitated adult) cannot successfully represent his or herself. Close relatives are the preferred guardians ad litem, but attorneys may also be used.
If I'm living with a child who is not my own, should I become a guardian?
If you are planning on taking care of the child on a long term basis, then you should consider becoming a guardian. Without guardianship, you will have difficulty getting medical care for the child, enrolling him or her in school, as well as a host of other problems. Also, because guardianship creates a legal right, you will have some say in the child's future as a guardian, whereas a mere caretaker would not.
Are there reasons I should not become a guardian?
There are many good reasons a person would not want to become a guardian. Filing for guardianship could set off a dispute that you may want to avoid for both the child's sake and yours. You might also know that a child's biological parents would object and make the guardianship process extremely difficult. You can still try to raise a child without guardianship, but you will have significant problems in doing so. Many institutions, such as hospitals and schools require parental authorization. Each state has different rules, so research your state's laws to reveal any potential problems you might have.
If I'm already a parent, would I ever need to become my child's guardian?
Yes, if a child is left something in a person's will, you may need to become the child's guardian. Courts are reluctant to hand over financial assets intended for a child to the child's parents. The concern is that parents will misuse a gift that was intended for the child. By setting up a guardianship, a legal relationship - and thus a set of obligations - is in place to make the parent legally liable for those assets and their management.
Where minors are concerned, the subject if a guardianship can be: The minor him/herself (or what is commonly referred to as the minor's "person"),The property (or "estate") of the minor, orBoth the minor and his/her estate.
Selecting Guardians of Minors
Preferred guardians for a minor are first the minor's parents, and then other relatives. However, the primary consideration in selecting a guardian is the best interests of the minor. If the parents are still alive, before a nonparent is chosen as a guardian the parents must be deemed unable or unfit to look after the best interests of the minor. When minors are removed from the care and supervision of their parents, and adoption is either not forthcoming or not a viable option, guardianship is considered a reasonable alternative.
Even after a guardian is chosen for a minor, most state statutes allow that at age fourteen (or other reasonable age), the minor may select (or at least voice a preference) concerning who will be selected to serve a guardian.
Guardian's Role and Responsibilities
The guardian of a minor looks after the direct physical well-being of the minor and the assets of the minor's estate. A guardian is also necessary to:Provide a legal residence in order for the ward to attend a public school;Apply for public assistance benefits for a minor if needed;Apply for public housing on behalf of a minor where necessary; andBring a lawsuit on behalf of the minor.
The guardian also receives and maintains any money due the minor for his or her care or support. The guardian is required to maintain, account for, and preserve any excess funds beyond what is necessary to support the minor. The guardian has a duty to look after the minor's personal property and assure the proper education of the ward. The guardian is also required to authorize any necessary medical or other care for the well-being and health of the ward. Generally, the guardian provides whatever care would be given to a child by its parents.
Termination of Guardianship
When a guardianship of a minor is in place because of the age of the ward, the guardianship may be terminated when the minor reaches the age of majority. The guardianship may be reinstated by the court after the ward reaches the age of majority, where it can be shown that the ward still requires supervision. Guardianship may be terminated if the ward marries. Guardianship is automatically terminated at the death of the ward. In addition, the guardianship may be terminated, and a new guardian appointed, when it can be shown that the guardian did not adequately perform his or her duties to the ward.
Ten Things For You To Think About: Choosing a Guardian + Guardianships and conservatorships are established for people who need representatives to oversee their personal affairs or finances. A person incapacitated by age or health problems may come under the care of a legal guardian or conservator. This relationship is often established by court order when an adult becomes unable to deal with his or her personal affairs, but in some instances a guardian may be pre-selected by the individual directly concerned.
If you have a role in selecting or approving a guardian, you should give serious thought to the following ten questions.Does the candidate have a reputation for honesty, integrity, and timeliness?Has the candidate ever been convicted of a crime?Has the potential guardian managed his or her personal matters in a responsible manner?Does the candidate have educational, professional, or business experience that lends itself to the performance of the duties of a guardian or conservator?Does the candidate have the time to devote to the required duties?Is the potential guardian in good health?Does he or she have a history of substance abuse?Is the candidate likely to engender the respect, support, and cooperation of all persons affected by his or her decisions?If the ward is incapacitated, did the ward previously express his or her wishes as to whom to appoint as guardian?Although not required, is the potential guardian related by blood or marriage to the ward, or does he or she know the ward well enough to carry out that person's probable intentions?
Ten Things to Think About: Choosing a Guardian for Your Child + Having children adds an new and extremely important dimension to estate planning. If all of a child's legal parents are dead or incapacitated, and never made arrangements for such an emergency, the child will have to be placed with a new family. This is an extremely disruptive process for the child, even if the new family are grandparents or other relatives. It can be avoided if a parent chooses a guardian for the child in a will or a grant of guardianship.
1. DIFFERENT PURPOSES. There are two kinds of guardians: guardians of the estate, and guardians of the person. The former manages the money or assets held by a child, either when the parents are alive or after their death. A guardian of the person, however, is someone who becomes a substitute parent for the child should the child's actual parents die or become incapacitated or otherwise unable to take care of them.
2. MATCHING ATTRIBUTES. When selecting a guardian, be aware of the two types, and choose people with the skills or attributes that best suit those roles. In other words, your accountant brother-in-law may be a terrific choice as guardian of the children's estate, but his workaholic nature may make him a poor choice for guardian of the person.
3. MULTIPLE GUARDIANS. Just as you can choose different people to be guardians of the estate and person, you can also choose more than one of each type if you have multiple children. For instance, if you have a large family and know that the burden of raising multiple children or managing their assets would be too much to ask of one person, you can assign certain guardians to certain children. Whereas there are probably fewer emotional ramifications to such a choice when guardians of the estate are involved, there are larger considerations at issue when dealing with guardians of the person. Do you really want your children split up into different families if you and your spouse die or become incapacitated before they are grown? Maybe, maybe not.
4. SHARED VALUES. Choose someone you know well and who shares your goals, values, and parenting style, whether you are selecting a guardian of the person or estate. Even if the person you select is limited to making financial decisions on your child's behalf, you want that person to share your philosophy of childrearing in general.
5. FINANCIAL STABILITY. Choose someone who has the financial resources to care for your children. It costs a lot of money to raise and educate children, and you do not want to impose these economic burdens on someone who can not meet them.
6. LONGEVITY. Choose someone young enough to see their responsibilities through to your child's adulthood, and in good enough health to withstand the challenges of childrearing. While physical disabilities do not necessarily preclude good parenting, it is wise to consider health factors that may limit a person's life expectancy or ability to parent. It may be tempting to choose your own parents as guardians, but logically speaking they are less likely to outlive you than are persons your own age or younger.
7. BE INDEPENDENT. Don't be influenced by others' wishes as to whom you should select to be your child's guardian. Unless the person you've selected opposes your choice, this decision belongs to the parents alone.
8. CONSIDER CHARACTER. Don't choose someone that a court would not approve as a guardian, such as someone with a history of drug or alcohol abuse or a criminal record.
9. TALK IT OVER. Although the guardian selection decision belongs to the parents, it is important to get approval from the person you are considering before you make it final. There may be valid reasons why someone can not fulfill your request, and it is better to find that out while you still have the option of making another selection.
10. GET IT IN WRITING. Once your decision is final, consult your attorney to draft the necessary documents to make your choices legally binding and official. Wills, trusts, and other legal documents can be used to implement your guardianship decisions. Your attorney can advise you on proper procedure, prepare the necessary paper work, and file any required documents.
An individual who wants to establish legal guardianship of a child or adult will need to gather certain documents and file forms with the court, among other preparations. This section contains a number of guardianship resources, including examples of select state guardianship laws; links to some state-specific legal guardianship forms; a checklist of documents and other information you may need to gather before establishing guardianship; and other related resources.
Being A Guardian: Documents To Gather + If you are the guardian of an elderly relative, you are responsible for the management and safety of that relative's assets. As such, you must gather all the important documents needed to manage those assets. In doing so, you may find the checklist below helpful in creating your own personal Document Checklist.
Because laws that impose responsibilities on guardians must be carefully followed, your attorney should assist you in clearly understanding your legal responsibilities as a guardian and the proper execution of those responsibilities. Notes: ____ Power of Attorney ____________________________________ ____ Living Will ____________________________________ ____ Guardianship Papers ____________________________________ ____ Trust Documents ____________________________________ ____ Deeds ____________________________________ ____ Land Grants ____________________________________ ____ Water Rights ____________________________________ ____ Mortgages ____________________________________ ____ Leases ____________________________________ ____ Bonds ____________________________________ ____ Loans ____________________________________ ____ Contracts ____________________________________ ____ Tax Notices ____________________________________ ____ Abstracts of Title ____________________________________ ____ Vehicle Titles ____________________________________ ____ Bank Statements ____________________________________ ____ Pass Books ____________________________________ ____ Checkbook Registers ____________________________________ ____ Mutual Fund Statements ____________________________________ ____ IRA Statements ___________________________________ ____ Stock Certificates ___________________________________ ____ Canceled Checks ___________________________________ ____ Bills ___________________________________ ____ Receipts ___________________________________ ____ Check Stubs ___________________________________ ____ Social Security Documents ___________________________________ ____ Retirement Papers ___________________________________ ____ Pension Documents ___________________________________ ____ Income Tax Returns ___________________________________ ____ Will ___________________________________
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