Legal Guardianship Procedures

by David Carnes
    Guardianship is often utilized for children's best interests but is not limited to the youth.

    Guardianship is often utilized for children's best interests but is not limited to the youth.

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    Guardianship is a legal relationship between two people: a guardian and a ward. The guardian is granted legal authority over the ward, and the role is similar to that of a parent, who has legal authority over a child. A guardian may be appointed for either a minor or an adult, as long as the ward is legally incompetent and the guardianship is in the best interests of the ward.

    Legal Incapacitation

    An adult may be ruled incapacitated and thus eligible for wardship if he is physically or mentally disabled to such an extent that he is not able to provide for his own needs. A minor under the age of 18 is usually treated as legally incapacitated for wardship purposes, although a court may recognize a minor as "emancipated" if he is married, for example, or if he joins the military. A guardian may be appointed for a minor if his parents are dead, if their parental rights have been legally terminated, if they are incarcerated, if they are mentally incapacitated or if they are minors themselves.

    Court Procedures

    The appointment of a legal guardian requires an order issued by a court with jurisdiction over the prospective ward's residence. Anyone may file a petition to have a guardian appointed for someone. Normally, such petitions are filed by an interested party, such as a relative or a representative of a social services organization. If the prospective ward is an adult, he must first be declared legally incompetent. A declaration of legal incompetence requires expert medical opinion and an adversarial hearing. Although a judge may give weight to a relative's preference when determining the identity of the guardian, he may choose someone else if he believes that it is in the best interests of the ward. If the judge thinks the guardianship process is likely to be time-consuming, he may appoint a temporary guardian to care for the ward until court proceedings are over and a permanent guardian is appointed.

    Guardian Qualifications

    A guardian must have reached the age of majority and must be mentally competent. Most states disqualify a candidate for guardianship who has ever been convicted of a felony. The court may require the guardian to be a resident of the state in which the court sits.

    Termination

    A guardian may resign only with the permission of the court. A guardianship may also be terminated if the basis of the guardianship is no longer applicable -- if a minor reaches the age of majority, for example, or if a mentally or physically incapacitated person regains capacity. In the latter case, the party seeking termination of the guardianship must prove that the guardian has regained legal capacity. A court may also terminate a guardianship if it determines that termination would be in the best interests of the ward.

    About the Author

    David Carnes has been a full-time writer since 1998 and has published two full-length novels. He spends much of his time in various Asian countries and is fluent in Mandarin Chinese. He earned a Juris Doctorate from the University of Kentucky College of Law.

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