A legal guardian is a person who is given authority over and legal responsibility for another person or her property by a court. A court may appoint a guardian for a minor or an adult who's incapacitated and can't make her own decisions or take care of herself. Reasons for a guardianship vary by situation. For example, an incompetent adult who can't manage her medical care needs a guardian for safety reasons. A legal guardian's authority ends as soon as the person for whom he's responsible, known as the ward, dies. But there are other reasons a guardianship may end, such as court-ordered termination and the guardian's own resignation.
Guardian of Person or Property
Guardian laws vary by state. Some states use the Uniform Guardianship and Protective Proceedings Act, which gives a guardian responsibility for a ward's care, but a conservator is responsible for the ward's property management. Other states allow guardians for both persons and property. A guardian of a person is responsible for the ward's overall mental and physical health. He arranges the ward's educational services, takes care of her needs and gives permission for her medical services. The guardian decides where the ward should live, protects her and cares for her personal items. A guardian of an adult or minor person's property — also known as a guardian of an estate — controls a ward's assets, including real estate and financial accounts. The court granting the authority determines what property is subject to the guardianship. A property guardian is responsible for managing the ward's property for her benefit and care and keeping records of all his actions with her assets. A person who is acting as the guardian of a ward's person and property is known as a "general" guardian.
Other Guardian Types
An adult or minor guardianship may be plenary, emergency, limited, interim or temporary. Appointment procedures and requirements for these types of guardians vary by state. Plenary guardianship means the ward's rights are removed entirely, while a limited guardianship leaves the ward with some rights intact. For example, a ward under limited guardianship may keep the right to make her own medical decisions. A temporary guardianship only gives the guardian authority for a specific length of time stated by the court. An emergency guardian is appointment if the ward is in immediate need of a guardian. For example, an adult who is mentally incompetent and being harmed by another party needs an emergency guardian. The appointment is made quickly, and the guardianship may become permanent after court hearings are on held on the matter. An interim guardian is appointed if the ward's original guardian resigns or is removed by court order. The length of the interim guardian's authority depends on various factors, including state laws and the availability of a new permanent guardian.
Minor Versus Adult Guardian
An adult guardian and minor guardian have some of the same responsibilities, such as providing for the ward's care. However, for an adult guardian to be appointed, he usually must prove the ward is incapable of caring for herself and her property. A guardian of a minor doesn't have the same burden of proof, since the ward is a child and can't take of herself legally. A minor guardian may have to show the parents can't take care of the child if the parents have parental rights and aren't agreeing to the appointment.
End of Authority
An emergency guardianship ends if the court finds the guardianship isn't needed. For example, if the ward is found competent during the hearings held after the guardian was appointed, the court usually ends the guardianship. An interim guardianship ends once a new permanent guardian is appointed. A temporary guardianship ends once the number of days granted by the court has passed. For example, Wisconsin grants temporary minor guardianships for a period of 60 days.
End of Need
A guardianship ends when the guardian isn't needed any longer. For a guardian of an adult or minor person's property, this occurs when the property subject to the guardianship is spent. The guardian usually has to petition the court to legally end the obligation. The guardianship of a minor person ends when the ward turns 18 under most circumstances. His obligation to the ward may end automatically, without the need for a court order, depending on state laws. A guardianship of an adult ends if the court determines the ward has regained her mental competency. The ward or guardian may petition the court to end the guardianship if she regains her mental facilities, but the ward might need legal representation to do so in her state.
Any type of legal guardian has the right to voluntarily resign, but he has to follow court resignation procedures and can't just abandon the ward. Laws for guardian resignation vary by state. A guardian commonly has to petition the court to ask for removal and show why his removal would benefit the ward, notify all the ward's relatives and provide a property account if he has control over the ward's assets. The court will try to locate an acceptable replacement, but the ward might become the responsibility of the state if another guardian isn't found.
Other Party Actions
A minor ward's parents may petition the court to end any type of guardianship without the guardian's permission for various reasons. For example, if a father lost his daughter because the court found he was an unfit parent, he petitions the court to show he's now capable and no longer needs the guardian to care for his child. He may also petition the court if he believes the guardian isn't taking proper care of his child or her property. A minor child who reaches a specific age, as decided by state law, can petition the court to end the guardianship. For example, a minor ward in California who is at least 12 can petition for a guardianship termination. An adult guardian's relatives or other people involved in her care — such as her primary doctor or psychiatrist — may ask a court to end the guardianship. Some common reasons for a termination petition by a relative or caregiver include the guardian's failure to care for the ward or his mismanagement of her assets.
References & Resources
- North Carolina Division of Aging and Adult Services: When Does a Guardianship End?
- North Carolina Division of Aging and Adult Services: What is Guardianship?
- The Superior Court of California, County of Santa Ana: When Does the Guardianship End?
- Maine Department of Health and Human Services: For How Long Will a Guardian or Conservator be Appointed?
- North Carolina Division of Aging and Adult Services: Are There Different Kinds of Guardians?
- Guardianship Alliance of Colorado: How Are Guardianship and Conservatorship Terminated?
- Hampshire County Probate and Family Court: Guardianship of Minor Child (ren)
- University of Pennsylvania Law School: Uniform Guardianship and Protective Proceedings Act
- Florida Estate Planning Lawyer: Plenary Guardianship vs. Limited Guardianship
- Paul B. Bartlett, PC: Emergency Guardianship and Conservatorship in Arizona
- Ohio Legal Services: Wills and Probate : Guardianships
- National Center on Elder Law Abuse: State-Level Adult Guardianship, An Exploratory Survey
- Barron County, Wisconsin: Minor Guardianship
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