What Is Guardianship?
What is legal guardianship? A legal guardian is a person or agency the court chooses to be responsible for caring for a person with a legal incapacity who is unable to care for him- or herself. The individual needing a legal guardian may be physically or mentally disabled, ill, or an aging adult. A court will appoint a legal guardian when it is determined that the individual cannot provide basic care for him- or herself including food, shelter, clothing, medical and financial assistance, emotional support, and/or protection from harm. A guardian can also be appointed from birth when there is a need for a legal representative for a minor child.
If no prior legal guardianship exists in an individual’s life, legal guardianship usually begins with a person requesting to be appointed by the court. A person may want that position in order to handle financial or personal matters on an individual’s behalf. However, a court will allow agencies such as an assisted living or group home to take on the role of a legal guardian. Legal guardians are often family members of the individual, but this is not always the case. The court appoints a legal guardian when it grants legal guardianship for a person who has become incapable of taking care of his- or herself . This can be a court-appointed legal guardian or agency representative. Situations that usually create the need for legal guardianship include: In these cases, the court appoints the person or agency as a legal guardian. Legal guardianship can sometimes exist if there are existing legal documents that make provisions for the individual. Documents can include powers of attorney, advance healthcare directives, trusts, and estate planning documents.
Once a legal guardian has been appointed, the legal guardian has duties similar to those of a parent, but without parental rights over the individual. Common duties include deciding where and how a person will live; aiding in the education and development of a person; helping the person to develop social skills; managing finances; overseeing medical decisions; and more. Legal guardianship lasts for a specific time as established by a court. A person can ask the court to terminate a legal guardianship, but the court must give consent. Maybe a person becomes competent again or a legal guardian wants to terminate his- or her role. A legal guardian must get a court’s approval before resigning. If a legal guardian dies, moves away, becomes incapacitated, or stops being the primary caretaker of the individual, the legal guardianship terminates.
Different but Identical Guardianships
Types of Guardianship
Legal guardianship can be established and exercised over the property or the person, or both, of a minor child, or a mental incompetent, by an order of the court issued under the Probate Code or Family Code. (Fam. Code, sections 3100-3105; Prob. Code, sections 1400-1448.) The law provides different types of guardianship to accommodate a wide variety of circumstances that parents or the court may consider when the child’s welfare is at stake.
For example, guardianship of a child who has been removed from the custody of the parents or legal guardian is created automatically by the dependency statutes of the Family Code. If the child has not been previously removed from the parents’ or legal guardians’ custody under the Family Code, the Probate Code governs the guardianship. (Prob. Code, section 1401.) Conversely, a guardianship of the person and estate created under the Probate Code may or may not affect a preexisting dependency guardianship. (Fam. Code, section 3420, subd. (b); Prob. Code, section 1401.)
The law of guardian of the person (or conservatorship of the person) or guardian of the estate (or conservatorship of the estate) may be applied in limited or broad form. For instance, a minor child may have only a limited guardian for the person in the nature of a stand-in for the parent, but a conservator with broad powers over the estate. Similarly, a minor may have a guardian of both the person and the estate who serves in a parent-guardian capacity overall, or a guardian of the person with only some limited powers over the person and a guardian of the estate with broad powers. (See Fam. Code, section 17400 et seq.; Prob. Code, section 2400 et seq.) Thus, the personal estate of a minor child, or an adult, can be placed under a much broader level of control than may be required for personal care.
Guardianship orders can be temporary or permanent. A temporary guardianship of a minor may be needed to step into the parents’ role on an emergency basis until the long-term issues are resolved. (Fam. Code, section 7500 et seq.) Temporary guardianships are often granted only for a short period of time and terminate after a set time period, unless extended, after notice and hearing, by the court, or unless terminated earlier by the petitioner.
When Is Guardianship Required?
Legal guardianship is necessary for the protection of individuals unable to handle their own affairs or make their own decisions. A legal guardian has the legal authority to make decisions for the ward that the ward would be entitled to make if competent. The demanding and complex nature of certain decisions makes guardianship appropriate. Certain situations in which guardianship may be necessary include:
Children
When a minor has been abandoned by a parent
When a minor has been neglected and the natural parents’ authority over the child is terminated
When a minor is abused by a parent
When a natural parent is incompetent or incapacitated
When a natural parent is deceased or incapable of caring for the child
When a minor is being neglected due to poverty and homelessness
When no one claims a minor after the death of a parent or both parents
Adults
When an adult is physically incapacitated
When an adult suffers from mental or emotional disorders which prevents them from making decisions for themselves
When an adult experiences a mental breakdown
When an adult has a permanent physical condition rendering them partially incapacitated
When the affairs of an adult become disorganized due to the inability to understand them
When an adult has been declared mentally incompetent
When there is an improper influence exercised over a person who has a mental or physical condition
When an adult has been declared mentally ill
When an adult is senile and unable to make decisions for themselves
Finding The Right Lawyer for Your Guardianship
When seeking legal representation for guardianship issues, it is vital to select an attorney who has the right qualifications. Reviewing an attorney’s credentials before hiring is always a good practice. Consider recommendations from friends and family members, as well. It is also important to find an attorney who has specific experience and a proven track record of success in handling legal guardianship cases. There are several key factors that go into the right lawyer for guardianship assistance. The first concern should be that the attorney is licensed to practice in your state and has the relevant certifications. Ask about the attorney’s experience and education, including a law degree from a respected institution. Research the specific areas of guardianship that the attorney practices heavily in. Make certain there are no disciplinary actions or issues that could negatively affect the outcome of your legal proceedings. Since guardianship cases can be quite emotional for all involved, it is important to choose an attorney with whom you get along with, while also being professional and competent to complete the job. The right attorney will be there for you during this difficult time and will work hard to defend you and protect the legal rights of your family.
The Guardianship Process and Legal Requirements
The process of establishing guardianship is generally a two-step procedure. First, the party requesting guardianship must file legal papers with a particular state court, seeking an official finding from the court that the candidate for guardianship suffers from a condition which renders them unable to take care of their property or themselves. Some jurisdictions utilize different terminology for these legal filings (such as "request for appointment of a guardian and letters of guardianship"), but the general process is similar across the board.
After a judge reviews the request, the court usually requires the party seeking the guardianship to send out notice to any and all known relatives of the person for whom guardianship is being sought. After the notice period expires, the court conducts a hearing on the matter. At this hearing, the party seeking guardianship proves the incapacitated condition is permanent and provides evidence that such guardianship is in the best interest of the disabled person. Additionally, the court at this point either allows the person to complete a last will and testament, if they had not yet done so, or alternatively, revokes any previously created and potentially outdated will or other estate documents , for the good of the potential ward’s estate. Once the court approves the guardianship petition, a guardianship order is entered.
Throughout this entire process, the requesting party must also provide evidence that they have undergone a criminal background check. Not every judge screening a potential guardian requires a background check, but quite a few do. Additionally, depending on the particular situation, the court may appoint an attorney, highly experienced in probate work, to assist the potential guardian in navigating the intricacies of the process.
It is also possible that the judge can appoint an investigator, often a court officer or lawyer, who then reports back to the court on the status of the potential ward, either personally, through a court report, or in other forms. The investigator’s duties may also extend to a guardian over the person as well, depending on the ward’s needs. This investigator may also be expected to develop a finalized guardianship plan, which the court must approve before the process moves forward.
Overall, the requirements for establishing guardianship vary depending on individual state law, but the general outline of the process tends to be quite similar. Depending on the state, some requirements may be more or less stringent.
Guardianship-Related Fees
While obtaining the legal authority to make decisions on behalf of an incapacitated person is critical, doing so can be expensive. In addition to the basic attorney fees for the petition, you can expect to pay court filing fees and publishing costs if the guardianship is contested. There are other types of fees if the guardianship is not contested and the ward is not able to address their own financial affairs.
In addition to this upfront legal expense, there will many times be ongoing costs, such as medical examinations. If the guardian has to petition the court for approval for certain expenditures, they may be required to pay an additional filing fee.
Also, if there is a bond requirement, you will likely have to pay a fee to the bonding company who will post the bond on your behalf. Lastly, additional fees may be incurred because a court visitor may have been appointed to interview the prospective ward.
All in all, while there are ways to petition the court without a lawyer, it is very inadvisable to take on the responsibility of guardianship without one.
How Will a Lawyer Help with Guardianship
A legal guardianship lawyer can help you navigate all the steps involved in obtaining legal guardianship. A lawyer who is familiar with the process can meet with you and go over what your specific needs are with regard to guardianship. From there, your lawyer can not only file the right forms but also advocate on your behalf with the referee or judge during any court appearances. With all the forms you have to file, setting the hearing for the review of the guardianship petition and attending that hearing can become challenging, particularly when you’re already stressed out trying to do your best for your child, loved one or individual under your care who needs a guardian, not to mention having to locate the proper forms and evaluate the requisite information. With a legal guardianship attorney helping you, you can rest assured everything is properly filed with the appropriate court, and that you can be well prepared to provide answers and information at the hearing for the guardianship petition and at the ongoing review hearing .
While appointing a guardian for a minor does not require a hearing if the parents consent, you may still wish to enlist the help of a lawyer in order to ensure the proceeding is done properly and efficiently. In addition to representing guardians in the guardianship proceedings, lawyers may also help achieve modifications to any Orders addressing a child’s placement with either parent, or other orders relating to parental rights to a child. In cases where no Order has addressed parental rights and where a guardian seeks to pursue custody of the minor, your lawyer can assist with filing for custody of the minor and representation at any hearing to determine whether to grant or deny the requested relief. Finally, your lawyer will also be able to help if a prior Order has specified the placement of your child with someone other than the petitioner and supplementation of such Order is needed to address all relevant considerations outlined in the law.