Legal Guardianship Procedures

By David Carnes

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.

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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 A guardianship may also be terminated if the basis of the guardianship is no longer applicable -- if a minor reaches the age of majority, for example, or if a mentally or physically incapacitated person regains capacity.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.

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Legal Guardianship for an Incompetent Parent
 

References

Related articles

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 Legal Guardianship Expire?

A guardianship is a legal mechanism by which one individual or entity is appointed by a court to make decisions on behalf of another person. The person in need of guardianship may be a minor whose parents are unwilling or unable to provide proper care for the child, or an adult incapacitated by illness or age. Unless otherwise stipulated by the court, a legal guardianship can expire or terminate; when and how depends on the type of guardianship.

Guardianship Laws for Adults

A guardian is a person or entity appointed by a court to care for a person who cannot meet his own needs, known as a ward. Although the powers and duties of guardians are similar to the powers and duties of parents with respect to minor children, a court cannot appoint a guardian for an adult unless he is subject to a disability that prevents him from effectively caring for himself. State law governs guardianships.

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