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.

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.

Protect your loved ones. Start My Estate Plan

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.

Protect your loved ones. Start My Estate Plan
Legal Guardianship for an Incompetent Parent

References

Related articles

Legal Guardianship in Nebraska

Nebraska law recognizes that certain people cannot take care of themselves because of their age or mental condition. For example, elderly people who have diseases, such as dementia, and minor children need help caring for their physical and financial needs. Thus, Nebraska has a system whereby courts appoint guardians and conservators for children or incompetent adults to take care of them physically and manage their finances until they become capable of caring for their own needs, if ever. If you have minor children, you can nominate such a guardian as part of your will.

How Do I Get Legal Guardianship in Missouri?

A legal guardian undertakes responsibility for the welfare of someone, known as a ward, who is unable to undertake these responsibilities on his own behalf. A ward may be either a minor whose parents cannot or will not care for him, or an adult suffering from an incapacity that prevents him from meeting his own needs. A guardian can be appointed only by court order. Missouri's guardianship laws are found in Chapter 475 of the Missouri Revised Statutes.

Legal Guardianship of a Minor in Ohio

A guardian must be appointed for a minor under the age of 18 if his parents die or are declared unfit, unless the minor is legally emancipated by virtue of an act such as entering the military or getting married. Ohio law requires a court order to appoint a legal guardian.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

Legal Guardianship in Iowa

A guardian is a person or organization that undertakes responsibility for the welfare of a person, known as a ward, who ...

Naming a Guardian in Kansas

A legal guardian is a party appointed by a court to care for a minor child or an impaired adult, known as the ward. ...

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. ...

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 ...

Browse by category
Ready to Begin? GET STARTED