Legal Guardianship for an Incompetent Parent

By David Carnes

A guardian is a party who undertakes legal responsibility and authority for the care of someone else, known as a ward. An adult can become a ward only if he is declared legally incompetent. If your parent is a victim of a disability that prevents him from meeting his basic needs, you may petition a court to appoint a guardian.

Incompetence

"Incompetence," for the purpose of appointing a guardian, must be established at a court hearing. A court will declare a prospective ward legally incompetent only if he suffers a physical or mental disability that prevents him from properly protecting his own property, health, safety or welfare. In some states, a court may find that a prospective ward partially incompetent; in that case, the court might grant, for example, only property management authority to the guardian.

Legal Procedures

The appointment process is initiated when someone petitions a court to be named guardian. In most states, the state district court sitting in the county where the proposed ward resides has jurisdiction over a guardianship petition. Once the petition is filed, the court will schedule a hearing. At the hearing the proposed guardian must establish that he is eligible to serve as a guardian, that the proposed ward is incompetent, and that no suitable alternatives to guardianship exist. The court may order an investigation into the character and past behavior of the guardian. Any interested party, including the proposed ward himself, may oppose the guardianship petition. If the petition is successful, the court will issue an order establishing the guardian/ward relationship.

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Guardian Eligibility

In most states, either an individual or an organization such as a social service agency may serve as a guardian. A guardian must be at least 18 years old and must possess the ability and inclination to act in the best interests of the ward. The duties of a guardian include providing food and shelter, making financial decisions, making medical treatment decisions and making end-of-life decisions. Misconduct can subject the guardian to civil or even criminal liability.

Termination of Guardianship

A guardianship automatically terminates when the ward dies. It also terminates if the court determines that the ward no longer requires a guardian, or if the guardian is found to be unfit to act in the best interests of the ward. A guardian must seek the permission of the court before resigning, and he can be sanctioned for abandoning his duties without obtaining advance permission.

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Legal Guardianship Procedures
 

References

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Legal Guardianship in Colorado

A guardian is appointed by the court to make personal decisions on behalf of another person, known as the ward, when that person is incapable of making decisions for himself. A ward may be a minor child or an incapacitated adult. In Colorado, the laws governing guardianship are found in Title 15, Article 14 of the Colorado Revised Statutes.

Dissolving Legal Guardianship in Kansas

A Kansas court may appoint a guardian to care for an impaired adult or child whose parents are unfit or unavailable. Such a person is known as a "ward." Guardianships in Kansas are governed by state law. Termination of a guardianship is available on several bases, some of which require a court hearing. Regardless of whether a court hearing is required, termination of a guardianship requires a court order.

Can a Permanent Legal Guardianship in Texas Expire?

A person with a mental or physical disability may need the assistance of a guardian to help him make decisions about his finances, healthcare, living arrangements and other life issues. In such situations, a probate court judge listens to the evidence and appoints a temporary or permanent guardian if he determines that is necessary. A temporary guardianship expires after 60 days, but a permanent guardianship remains in effect until the court issues an order to terminate it. However, a guardian's authority to act may expire under certain circumstances.

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