Laws on Obtaining Sole Guardianship

by David Carnes
A legal guardian may be appointed for a child whose parents are unfit caretakers.

A legal guardian may be appointed for a child whose parents are unfit caretakers.

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A legal guardian is someone charged with the responsibility of caring for a ward -- either a child or an incapacitated adult. He is normally vested with the same authority that a parent has over a child, including the authority to make important life decisions for the ward. A conservator, by contrast, is responsible only for managing a ward's financial affairs. A person granted physical custody provides for the ward's basic needs, such as food and shelter, but may lack the authority to make important life decisions for the ward.

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Prerequisites to Guardianship

Before a guardian can be appointed, the ward must be declared incapacitated (unable to care for himself). Minors are generally considered automatically incapacitated, although some states allow minors to become legally emancipated by certain acts, such as getting married. A guardian will not be appointed for an adult unless the court determines he is physically or mentally incapacitated. It will not appoint a guardian for a child unless his parents are either absent or unfit. The guardian must meet certain age requirements and fit to care for the ward. Sole guardianships are awarded only if a shared guardianship would not be in the ward's best interests.

Rights and Duties of a Guardian

A guardian has the right to make important decisions on behalf of the ward, including where he will live, go to school and religious training he will receive. The ward may even need the guardian's permission to marry. The guardian may consent to medical treatment or choose among alternative treatments. If the guardian lives in a state that does not recognize conservators, he may also administer the ward's assets. He is responsible for performing his duties in the best interests of the ward.

Accountability

State governments supervise guardians to make sure they continue to act in the best interests of the ward. Although state requirements differ, many states require guardians to submit a detailed annual report to the court that appointed them. The guardian may be required to submit detailed accounting reports if he has the authority to manage the ward's assets.

Drawbacks

A ward can be held civilly, or even criminally, liable for failing to make decisions on behalf of the ward that are in the ward's best interests -- by managing the ward's finances for his own benefit, for example. If he has physical custody, he can be subject to liability for failing to provide basic needs, such as food, shelter and safety. Caring for a ward may involve financial burdens as well, although in many cases these expenses are paid by someone else -- a parent, for example.