Guardianship

Guardianship

A guardianship is a legal process in which a court appoints a guardian to care for and make decisions for a minor or an incapacitated adult who is unable to care for themselves or manage their own affairs. Guardianship can apply to minors (under the age of 18) whose parents are unable to provide care, as well as adults who are mentally or physically incapacitated and need assistance in managing their personal, medical, and financial needs.

1. Types of Guardianship

a. Guardianship of a Minor

• Purpose: This type of guardianship is established when a child’s biological parents are unable to care for the child due to reasons such as illness, death, abandonment, or incapacity.
• Duties of the Guardian: The guardian has the responsibility for the child’s welfare, including their physical care, education, medical treatment, and living arrangements. The guardian becomes the child’s legal custodian and can make decisions about the child’s well-being.
•  Types of Guardianship for Minors:
• Guardianship of the Person: The guardian has responsibility for the minor’s day-to-day care, medical decisions, and living arrangements.
• Guardianship of the Estate: The guardian manages the minor’s finances and property, such as an inheritance or assets from a lawsuit settlement.
• Guardianship of Both the Person and the Estate: In some cases, a guardian may be appointed to care for both the minor’s personal needs and manage their financial assets.

b. Guardianship of an Incapacitated Adult

• Purpose: This type of guardianship applies when an adult is unable to make decisions for themselves due to mental or physical disabilities, such as in cases of dementia, Alzheimer’s disease, or severe physical injury.
• Duties of the Guardian: The guardian is responsible for managing the incapacitated adult’s daily living, medical care, and finances. In some cases, the guardian may be appointed to make healthcare decisions, while a separate conservatorship may be established for financial matters.

2. When Is Guardianship Needed?

Guardianship may be necessary when a minor or adult is unable to care for themselves due to the following circumstances:

• For Minors:
• Death, incapacity, or absence of the biological parents.
• The parents are unable to provide a safe or stable environment.
• Abuse or neglect by the parents.
• Parental rights are terminated.
• For Incapacitated Adults:
• Mental illness or cognitive impairment.
• Physical disabilities or illness that impair decision-making abilities.
• The person can no longer manage their own financial or personal affairs.

3. How Guardianship Is Established

To establish guardianship, a person must petition the court. The process generally involves the following steps:

Step 1: Filing the Petition

• A person seeking to be appointed as the guardian (usually a family member or other interested party) must file a Petition for Appointment of Guardian in the probate court.
• The petition must include information about the minor or incapacitated adult, the reasons for needing a guardian, and the proposed guardian’s qualifications.
• The court may appoint an investigator to interview the proposed guardian and assess whether guardianship is necessary.

Step 2: Notification

• The court will require that all interested parties, including the minor’s parents (if applicable) or family members (in the case of an incapacitated adult), be notified about the guardianship petition.
• The interested parties must be given an opportunity to object to the guardianship or suggest an alternative guardian.

Step 3: Court Hearing

• A hearing will be scheduled where the judge will review the petition and hear from the petitioner, the proposed guardian, and any other interested parties.
• The judge will evaluate whether the proposed guardian is suitable and whether guardianship is in the best interest of the minor or incapacitated adult.
• If no objections are raised, and the judge finds the petition valid, they will issue an order granting guardianship.

Step 4: Ongoing Supervision

• In most cases, guardianship is subject to ongoing court supervision. The guardian may be required to file periodic reports about the minor’s or adult’s well-being and the management of their assets (if applicable).
• The court may review the guardianship arrangement to ensure that it remains in the best interest of the individual.

4. Rights and Responsibilities of a Guardian

A guardian is appointed to care for the individual, but their powers and duties can vary depending on the type of guardianship.

a. Guardianship of a Minor

• Care and Custody: The guardian is responsible for ensuring the minor’s safety, education, and overall well-being.
• Decision-Making: The guardian has the authority to make decisions regarding the child’s healthcare, schooling, and religious upbringing.
• Estate Management: If the minor has assets, such as inheritance, the guardian may be responsible for managing these assets and may need to provide the court with regular accounting.

b. Guardianship of an Incapacitated Adult

• Personal Care: The guardian is responsible for ensuring the adult receives proper medical treatment, housing, and basic needs.
• Financial Management: If the guardianship involves financial management, the guardian must take care of the individual’s assets, pay bills, and ensure that the individual’s funds are used for their benefit.
• Healthcare Decisions: The guardian may be authorized to make decisions about the individual’s medical care, including end-of-life decisions in some cases.

5. Terminating Guardianship

A guardianship can be terminated under certain circumstances, such as:

• The minor reaches the age of 18 (in the case of a minor guardianship).
• The incapacitated adult regains the ability to make decisions about their own care and finances.
• The guardian is no longer able to fulfill their duties (e.g., the guardian passes away, or they are no longer suitable to act in that capacity).
• Court order: The court may terminate the guardianship if it finds that it is no longer in the best interest of the individual or if the guardian is not fulfilling their responsibilities.

6. Costs of Guardianship

The costs of guardianship can vary depending on the complexity of the case and whether legal assistance is needed. Common costs include:

• Court filing fees: These are generally in the range of $100 to $500 depending on the county and case type.
• Attorney fees: If an attorney is needed, fees can vary, with hourly rates ranging from $100 to $500 or more per hour.
• Investigation fees: If the court appoints an investigator, fees for their services may be added.