Monday, April 1, 2013

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. 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.


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
  • Managing finances and bank accounts

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.

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 spouse
  • Parent(s) or another relative
  • 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.

Contact an Attorney

If you or a loved one is involved in Guardianship matters it is critical to contact an experienced family law attorney. By hiring a skilled attorney, you ensure your legal rights are protected and that you receive the proper representation you deserve.

Practice Areas: 

Divorce & Family Law