Guardianship laws for adults are complex and vary from state to state but, in general, a guardian can be appointed in one of two ways: under a will or via a court order. A guardian is appointed in a will when the previous guardian names a new guardian in his will and the previous guardian dies. If the new guardian accepts the appointment, guardianship of the adult child passes to that person. Not all states recognize this method of assigning guardianship. Some states, like Illinois, recognize only court-appointed guardians. A parent attempting to obtain court-appointed guardianship of an adult child must file a guardianship petition with the court. A judge or jury will evaluate the adult child's disability to determine if a guardian is necessary and, if so, whether the petitioner is adequate for the job.
Disagreements Over Guardianship
State laws vary, but when a divorced or separated parent files a guardianship petition with the court, she must often notify the adult child's other parent of the pending petition. If the other parent disagrees with his former spouse obtaining guardianship, he has the right to attend the hearing and raise an objection. In this case, the court may determine guardianship via a jury trial rather than a hearing.
The parents of an adult child who requires special care can appeal to the court to appoint them as co-guardians. In states that do not allow a guardian to appoint a subsequent guardian in a will, co-guardianship protects the child and ensures that she has a responsible guardian in place even if one of her guardians dies, needs to travel or is no longer capable of providing adequate care. Parents who accept co-guardianship of their adult child must agree on all decisions regarding the best interests of their child. For example, if a mother and father hold a co-guardianship and their adult child wants to apply for a job, they must agree on whether or not the child can work and, if so, what type of employment is appropriate.
Guardianship assignments, like custody agreements, aren't always permanent. If one parent petitions for and receives guardianship of his adult child, the other parent has the right to petition the court to terminate or modify the arrangement at any time. Parents are not the only individuals capable of providing care for their adult child. The disabled individual's siblings can share guardianship responsibilities with parents or each other. A sibling also has the right to apply for and receive sole guardianship of the disabled individual.