The Basics of Guardianship

The Basics of Guardianship

by Brette Sember, Esq., September 2018

Guardianship gives a person the legal right to care for and make decisions for another person, usually of a minor or an adult who is unable to make decisions for themselves, such as an elderly or disabled person. In addition to managing the care for this individual, known as a ward, a guardian also manages their finances. When the guardianship is of an adult, it is sometimes also called conservatorship.

Guardianship vs. Custody

Guardianship differs from custody in several ways. Custody only refers to a minor child, while guardianship can be of a child or an adult. When someone gets custody of a child, they obtain parental or grandparental rights. A guardian does not receive any parental rights and is simply appointed to care for the ward and the ward's finances. When guardianship of a child is established, the child's parents maintain their parental rights. Custody can cancel out parental rights, or at least infringe on them.

When Guardianship Is Granted

Guardianship is generally established when a child or adult needs someone to care for them and manage their affairs.

Guardianship of a child can be granted in the following situations:

  • The child's parents consent to guardianship.
  • The parents' rights are terminated.
  • A court determines the child should be placed with a guardian.

It's common for military parents to name guardians for their children so that if they are posted overseas, there is someone they trust who can care for their child in their absence. Parents also commonly name a guardian in their will so that, if they die leaving a minor child, they can indicate to the court their preference for a guardian.

Guardianship of an adult can be granted when an adult is incapacitated and cannot make their own decisions. This could happen due to:

  • Sudden illness
  • Chronic illness that gradually leads to incapacitation
  • A disabled person reaching adulthood and requiring ongoing care
  • An adult exhibiting behavior indicating he could cause harm to himself or others

How to Get Guardianship

Guardianship can only be established by a court order, so to obtain guardianship over a child or adult, you need to file a petition, even if the parent of a child has already consented to grant guardianship. This process is usually carried out in probate court in the county where the prospective ward resides. Forms are available from your local probate court's website or court clerk's office. After the petition is filed, the ward is served and the court schedules a hearing to determine if guardianship is necessary or appropriate. Proof, such as a doctor's examination, is necessary for guardianship of an adult. Guardianship of a child requires proof that the child is in need of supervision or care.

Preventing Guardianship

It's possible for an adult to prevent a guardianship situation by creating an estate plan—which can consist of many legal documents—that prepares for all eventualities. To do this, you need a health care advance directive and/or a health proxy so that you can name someone to make health decisions for you and also establish what your wishes are for end-of-life health care. You might also choose to create a living trust to ensure your finances are protected and managed. A power of attorney names someone to handle business and financial dealings on your behalf should be unable to do so. If you want help setting up your estate plan, you can use an online service provider.

Guardianship can be an important lifeline for children or adults in need. Ensuring that you prepare for all eventualities—for yourself and your loved ones—can give you peace of mind.