Legal Guardianship Procedures

By Christine Funk, J.D.

Legal Guardianship Procedures

By Christine Funk, J.D.

A guardianship refers to a legal relationship between a court-appointed guardian and a ward. The ward, whether an adult or a child, is a person in need of care in some capacity. The person appointed to watch over them has the responsibility of providing that care. Their responsibilities could include managing the ward's finances, in which case they are providing care of property. They may, alternatively, be responsible for managing the ward's personal needs, in which case they are providing care to the person. Often, but not always, the court names two guardians. One handles the finances, and one handles the choices about personal things, such as where the ward will live, what medical care they will receive, where they will attend school, and the like.

Man playfully lifting a child in the air

Adults in Need of Guardianship

A court may determine an adult is in need of a guardian in several different circumstances. Courts may appoint someone to care for a person who suffers from a mental or physical disability such that they cannot provide for their own needs or if a person is chemically addicted to an extreme.

Before appointing a guardian to an adult, the court makes a finding that the adult is incompetent. This typically requires expert medical testimony. The person who is the subject of the incompetency hearing has the right to contest the proceedings and offer testimony on their own behalf, typically through an attorney representing their interests.

Children in Need of Guardianship

Unlike adults, children are presumed incompetent to take care of themselves. When parents are unable to care for their children, courts appoint a guardian. Reasons parents may not be able to care for their children include:

  • Death
  • Incapacity due to illness
  • Incompetence
  • Imprisonment
  • Termination of parental rights
  • Deployment
  • Deportation

Courts appoint individuals they believe will act in the child's best interests.

Court Proceedings for the Appointment of a Guardian

When a person needs a guardian, someone must petition the court in the potential ward's county of residence. Typically, an interested party, such as a relative or an employee of a social service agency, applies for this responsibility with the court via a petition.

In the case of a parent's death or anticipated incapacity or unavailability, the parent may have designated a guardian for their children in a written will or other documents. However, the court is not legally required to grant this designation to the person the parents chose. Instead, the courts are obligated to consider the best interests of the child. Similarly, in cases of an adult in need of care, the courts consider the best interests of the ward when appointing a guardian.

Temporary and Permanent Guardians

Sometimes a court appoints a temporary guardian so the ward immediately has someone appointed who is legally responsible for their care. Legal proceedings may then continue, taking as much time as necessary, before the court appoints a permanent guardian.

Those who take on this role must be legal adults and competent themselves. Many states will not consider a guardian who has been convicted of a felony, however, this is not a complete bar in every state.

Termination of Guardianship

When the child reaches legal age, the personal guardianship ends. In cases where someone is in charge of a child's property, their duty remains until the child reaches the age of inheritance as designated in a properly executed will or trust.

For adults who have been appointed a legal guardian, the relationship may be terminated upon a showing of a return to competence. Courts may also terminate the relationship when it is in the ward's best interests to do so.

If you are considering selecting a guardian for your children or an adult, it's important to understand the procedures around enacting and terminating this designation in your state. Becoming familiar with the process will help you care for your loved ones in the event of an emergency.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.