What Is Legal Guardianship?

In most cases, legal guardianship defaults to a child’s parents from the moment the child is born. That guardianship remains with the parents until the child reaches the age of 18, when the individual assumes responsibility for him- or herself. If all goes well, the person will remain his or her own guardian for the remainder of his or her life. But things don’t always work out that way, leading some to seek out a legal guardianship. One guardianship definition indicates that it is a legal relationship formed when a person or institution has indicated that it is necessary for someone else to take care of minor children or, in the case of an adult guardianship, incompetent adults. This can happen because of provisions made in a will or by a court order. In order to request a transfer of guardianship, the proper guardianship forms should be filled out and filed with the help of a guardianship attorney.

Reasons to Seek Legal Guardianships

When something doesn’t seem to be right with the standing guardianship of a child or an adult, concerned friends or relatives may seek to become that person’s legal guardian.. Here are some instances in which the court might get involved in guardianship issues:

  • An elderly person becomes incapacitated and is no longer capable of making decisions in his or her own best interests.
  • A minor child loses his or her parents, and another relative seeks to take over as guardian.
  • A parent’s ability to act as an appropriate guardian for his or her minor child is compromised due to abuse issues, mental illness, uncontrolled substance abuse or a major decline in physical health. This can be initiated by someone who is concerned about the child, or if a parent is ill or has reason to believe that he or she will one day not be competent enough to serve as the child’s guardian, the parent can name a standby guardian. That person will only step in as guardian if a physician or licensed nurse practitioner determines in writing that the parent or guardian who initiated the standby guardianship arrangement is unable to care for the child due to a physical or mental condition. If this happens, a Notice of Standby Guardianship will need to be filed by the standby guardian, along with copies of the Designation of Standby Guardian and the Health Care Determination, in the probate court of the county where the child lives.
  • A child has received an inheritance in excess of $15,000. This is actually called a conservatorship, because authority is limited to overseeing the child’s financial affairs and doesn’t directly extend to the child’s overall well-being. By default, parents are granted financial oversight on inheritances of less than $15,000 but must obtain permission from the court to have financial control over larger amounts.
  • To continue guardianship for a child over 18 who is disabled and is not qualified to make decisions that are in his or her best interest
  • A minor child is involved in litigation and needs to work with a neutral party who can provide a more objective view of the situation the child is facing. These court-appointed guardians are called guardians ad litem. These guardians’ authority is limited to the context of the actual litigation. This is most often seen when there is a dispute over child custody or other domestic issues.

Limited, Temporary and Permanent Guardianships

When a guardianship is sought, it can be a limited guardianship, a temporary guardianship or a permanent guardianship, depending on the situation. With a limited guardianship, the guardian only takes over overseeing some of a person’s affairs. For example, a person with limited guardianship rights may be able to make health care decisions but not financial ones. A temporary guardianship is assigned when it is expected that a person will be able to assume the responsibility of being his or her own guardian at some point or if it is expected that the parent of a child will be able to act as guardian for the child after some type of treatment or rehabilitation. In order to be granted this type of guardianship, a temporary guardianship form needs to be filed with the court.

How to Get Guardianship of a Child

Sometimes, a temporary guardian is assigned if a child’s parent is incarcerated. If there is no reason to believe that the parent poses a danger to the child, the parent will likely resume taking care of the child after being released. At times, more than one person seeks to be a legal guardian as part of a joint guardianship. This helps protect the child or incapacitated adult from any decisions a single guardian might make that is not in the person’s best interest, since both guardians need to review major decisions.

Relatives who believe a child’s parents cannot care for the child sometimes try to get guardianship. This is common when the child has been abused or if the parent suffers from a mental illness or substance abuse problem. This can be a difficult fight that will require the help of an attorney.

Permanent guardianships are actually rare, especially in the case of minor children. In most cases, they are only granted if both parents are deceased or if the court has terminated the parental rights of the living parents. A termination of parental rights is a more extreme measure than losing custody. When a parent loses custody, there is an opportunity for the parent to redeem him- or herself and get the child back, but losing parental rights completely severs the parent-child relationship.

If you’re considering becoming a guardian for an adult or a child in your life, contact Wright Probate for a consultation.