Guardianship over a child or incompetent adult is a legal process that requires going to court. However, it does not have to be contentious.
Multiple types of legal guardianship relationships can take place between family members. Guardianship is often necessary to ensure an adult with a disability, an elderly person or a child is properly taken care of. When adults are not mentally fit to make decisions for themselves, another adult may become their guardian. When parents are not able to take care of their children, they may have a relative become their children’s guardian for a period of time. While guardianship can be a contentious process, the potential ward of the guardianship can also consent to the legal action.
TL;DR (Too Long; Didn't Read)
A guardian is someone who is given the legal right to make decisions for a child, an adult with a disability or an elderly adult. Giving or requesting guardianship requires going through a legal process and attending a court hearing.
The Difference Between Guardianship and Custody
Guardianship of a child, elderly adult or disabled adult is not the same as custody, although the two legal concepts are similar.
Custody refers to both legal and physical custody of a child. Legal custody is the right to make decisions for a child, while physical custody is the right to have physical control over a child. Custody is generally discussed in regard to a child’s biological or adoptive parents.
Guardianship gives an adult the right to make a variety of decisions for another child or incapacitated adult. Guardians are often family members who step in to care for a child when the child’s parents cannot, or who step up to take care of a relative when the individual is not competent to take care of herself.
The guardian may have the right to make all decisions, or the guardian may be limited to a type of decision, such as medical or financial. Guardians may also require court approval in certain situations.
The Guardianship Process
Family members go through the legal guardianship process together. For instance, a single mother who is suffering from cancer may give guardianship to her son’s grandmother while she seeks treatment and recovers. However, the guardianship process can also be contentious. An elderly person's adult child may file for guardianship over the elderly person's objections.
Whether or not the topic is contentious, guardianship is a legal process that requires going to court. The person seeking guardianship over a child or allegedly incompetent adult files a petition in court. He then serves a copy of the petition and a summons to court on the potential ward and other family members or interested parties. For a child, the potential guardian must show it is in the child’s best interests. In the case of an adult, if everyone is in agreement at the court hearing and it is clear the adult is incompetent, the judge is likely to approve the guardianship. If family members disagree, then it will be a longer and more stressful process. The person asking for guardianship must prove that an adult is incompetent and unable to make decisions.
Guardianship May be Temporary
A guardianship over children may be temporary. It is usually in place until children's parents are able to take care of them again or another situation is formalized, such as if the guardian or other family member adopts the children. However, guardianship can also last throughout childhood and end only when a child turns 18 years old.
Guardianship over an adult with a disability may last through the duration of the ward’s medical condition or throughout the ward’s life. For instance, parents of a child who has a severe cognitive and physical disability may become their child’s guardian when he turns 18 years old because he cannot make decisions for himself. This guardianship lasts throughout the child’s life because he will not recover. However, a parent or other adult may become a disabled adult’s guardian while she suffers from a temporary but extreme condition, such as untreated paranoid schizophrenia. When she is stable through treatment, she may be able to end the guardianship and regain the right to make decisions for herself.
Terminating a Guardianship
Ending a guardianship, unless it automatically ends when a child turns 18 years old, requires returning to court. The ward, or the parents of the ward, may file a petition in court to end the guardianship. However, if the guardian fully agrees to end the relationship, then the matter may be as simple as filing a consensual termination with the court.
Asking an Attorney for Help
If you believe it is necessary for a family member to become a guardian over your child, a disabled relative or an elderly relative, or you believe you should become a loved one’s guardian, contact an attorney. Look for lawyers who handle the type of guardianship relevant to your situation.