Does the Mother or the Father Have Legal Guardianship of an Adult Child?

By Ciele Edwards

When a child turns 18, she is an adult under the law and any previous guardianship or custody orders cease because adults are generally able to provide their own care. But when an adult child suffers from a mental or physical illness or handicap that prevents her from being able to care for herself, she may remain with her parents under a guardianship order. An adult child's mother or father does not receive guardianship automatically. In most cases, the individual's parents must petition the court for legal guardianship of an adult child.

Obtaining Guardianship

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.

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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.

Changing Guardianship

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.

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The Rights & Responsibilities of a Temporary Guardian in Arkansas


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Difference in Guardianship and Custodian

Custody and guardianship are two types of legal arrangements under which an adult assumes legal authority over and responsibility for the care of someone who cannot care for his own basic needs. Different types of custody and guardianship exist and laws vary by state. The most important difference between custody and guardianship relates to the degree of authority and responsibility vested in the caregiver.

What Are the Responsibilities of a Temporary Guardian?

A temporary guardian's job is to provide short-term care for an individual referred to as a ward. Wards may be minor children or adults suffering from physical, emotional or mental limitations. Generally, a court appoints a temporary guardian. For example, if an adult has no close family members and suffers an incapacitating stroke, a probate judge has the power to quickly appoint a temporary guardian so as not to delay the patient's critical care decisions. The lengths of appointments and legal oversights for temporary guardians vary based on state laws. For example, in Maine, appointments expire after 6 months. In Oregon, appointments expire in 30 days, but may be extended 30 more days upon a showing of good cause.

Legal Guardianship Procedures

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.

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