A guardianship is a legal process used to protect individuals who are unable to care for their own well-being due to infancy, incapacity or disability. One can be a guardian over a minor person or an elderly person, one can be a guardian over a person’s “estate”, or both. A guardian over the person (whether that be a minor, an adult who is incapacitated or disabled) has the responsibility to make decisions for that person’s care and well-being.
A guardian over the estate has the responsibility to manage the protected persons’ financial assets. Often times, being a guardian will include both roles, however, it is not uncommon to be appointed as a guardian over only one or the other.
In the guardianship over a minor, the courts appoint an adult guardian to care for a minor, who is not the child of the adult. Courts assign guardianships in a number of situations, including when parents have abandoned a minor, when a minor’s parents have died, or when a minor’s parents are incapable of providing proper care for the minor. A legal guardian may be a friend, family member, or other person the court feels will act in the minor’s best interest. As the minor’s legal guardian, an adult may be granted physical custody of the minor (guardian over the person), or they may act as a financial guardian who exercises control over the minor’s property (guardian of the estate). Or often times, the court will appoint the same person to be the guardian over the person and the estate. In a guardianship of a minor case the guardian will step in and provide a home, food, shelter and other financial benefits for the minor. In addition, the minor must be enrolled in school and they must be able to access medical and dental care. A guardianship allows this third person to step in and assume the parental responsibilities without terminating the biological parents rights to the child.
Once a child reaches the age of 18, they are considered adults, even if they have mental or physical impairments that require a caregiver. In order to re-establish the legal relationship which would allow you to make the financial and/or medical decisions for your own child, a Guardianship will likely need to be established.
When an adult of any age is determined to be incapacitated due to illness, injury or any other reason, a court can appoint a Guardian over the adult person and/or his estate. This guardian’s responsibilty is to protect the interests of the incapacitated person, whether that be medical, financial, or simply to ensure they have housing, food and other necessities.
Because the creation of a guardianship will likely deprive an individual of some personal rights, certain steps must be taken before a guardian is appointed. An individual has a right to notice and representation by counsel before a guardianship proceeding. During the proceeding, the individual has the right to attend, confront witnesses and present evidence. If the court appoints a guardian, the guardian is encouraged to respect the ward’s wishes and give the ward as much autonomy as possible. As above, guardianship of an elderly or incapacitated individual may entail guardianship of the person, guardianship of the estate, or both.
Guardianship involves the establishment of a legal relationship where someone (the “Guardian”) is appointed by the Courts to essentially “take care of” another person (the “ward”). Wardship creates a fiduciary responsibility on the part of the Guardian to act in the best interest of the Ward.
Establishing a Guardianship can be a complicated process whether you are seeking to establish a guardianship over a minor child or an incapacitate adult. Each guardian must perform certain actions to protect the Ward as directed by the Court.
How We Help
Trenna S. Parker Law Office has twenty years experience working with guardians and wards of a guardianship. Our offices have handled dozens of guardianships from minor guardianships, to guardianships of the edlerly or incapacitated and estate guardianships. Trenna S. Parker Law Office is here to help you with your guardianship needs.