If you are caring full-time for a child who is not yours by birth or adoption, or find yourself needing to make financial or legal decisions for another adult who is unable to do so for themselves, you may need to consider guardianship. Guardianship is a legal process that gives you the authority to make those decisions for another person. A legal guardian might take over all daily decision-making from the natural guardian, in the case of a child, or from the protected person, in the case of an adult. The process of obtaining guardianship is slightly different depending on the rules of your state, but in general involves filing paperwork with the court laying out the basis of your request. You can prepare these guardianship documents with or without the assistance of an attorney.
When Is Guardianship Necessary?
For children, a guardian is needed when their natural guardian is unable or unavailable to care for them. When a child inherits assets more than a certain amount of money (in most states, $10,000) or other valuable assets, an adult may become a guardian to manage the child’s assets until the child turns 18. This can be the child’s parent or current guardian.
Guardianship over an adult is necessary if the adult is incapacitated due to mental illness, disease, mental deficiency or mental incapacity. The scope of the problem may be complete or limited, depending on the capacity of the adult to participate in her own care.
What Are the Rights and Duties of a Legal Guardian?
The rights and duties of a guardian depend on the type of guardianship the court grants. Note that in some states, guardianships are called conservatorships, but they function the same. Likewise, different states use different terms for the adult or child receiving care, such as a protected person, ward or conservatee.
There are three general types of guardianship:
- Guardianship over the person. With this type of guardianship, the guardian takes over responsibility for the care and well-being of her charge. The guardian can make medical decisions and request medical treatment and provide other general care. A guardian might coordinate services such as in-home care, arrange transportation to routine medical appointments and select a caretaker. For a child, the guardian can also enroll the child in school and make schooling decisions. Obtaining guardianship over the person does not obligate the guardian to provide financial support, although, particularly for a child, this is often the reality.
- Guardianship over the estate. In guardianship over the estate, the guardian can make financial decisions for the protected person. However, even after the court approves guardianship, the guardian generally must get court approval to make any decisions about big expenditures or the sale of the person’s assets. All assets of the estate must be kept separate from the guardian’s own assets.
- Guardianship over the person and estate. Guardianship over the person and estate allows the guardian to make all financial decisions for the person and obligates the guardian to provide for the adult or child’s general welfare.
Unlike adoption, when you become a child’s guardian, the legal relationship between you and the child does not end the legal relationship between the child and the child’s biological parents. This is why the child’s parents remain financially responsible and why, if the parent dies without a will, the child still has automatic inheritance rights. In contrast, with adoption, the adopting adults legally become the child’s parents.
For children, guardianship over the person lasts until the child reaches legal age or a judge determines that guardianship is not needed, possibly because the child's natural guardian is able to take over care or another person is able step in as a legal guardian. Legal age is generally 18, or 19 if the child will not graduate high school until age 19. For adults, guardianship over the person lasts until a judge determines that the adult is able to care for himself, or when the adult dies. Guardianship over the estate for either a child or adult ends when the assets are gone or a judge decides guardianship is no longer necessary.
Sources of Financial Assistance for Guardians
It is rare for a guardian to be paid for fulfilling the guardianship role, particularly for family members, but there are limited potential sources of financial assistance. In general, any financial assistance is strictly to be used for the benefit of the adult or child. The available assistance will depend on the circumstance of the specific adult or child and the state where you live. For children, guardians might be eligible for Temporary Assistance for Needy Families, child support from the parents, Supplemental Security Income or state guardianship assistance benefits. Guardians of adults might apply for Social Security, medical insurance, Veterans benefits, disability benefits, Supplemental Security Income, Social Security Disability Income, public assistance or retirement benefits on behalf of the adult.
How to Draw Up Your Own Guardianship Papers
To obtain guardianship, you must petition the court. In most states, you will be able to find the necessary guardianship forms on the judicial branch’s website or through the clerk of court’s office. The main document you’ll need to submit will be a petition for the appointment of a guardian. You may want to consult an attorney before filing this form. This document will give the court general information about yourself, including your relationship to the proposed protected person and your qualifications for guardianship. Many states require that a guardian not be a felon, convicted of a crime involving the abuse of another or disbarred or suspended for mismanaging assets. You must also provide information about the proposed protected person, including, for children, their current guardian.
Use the document to explain the basis for your request, or why this person needs a guardian. Your state likely has defined by law specific circumstances under which guardianship may be granted. For instance, in Maine, guardianship may be granted over a minor when the parents or legal custodian give consent, a court has terminated or suspended all parental rights, a court has determined that one or both parents are incapacitated, the minor is faced with an intolerable living situation, or both parents have died without appointing a guardian. The court may ask for facts supporting your request, including, for adults, some proof of incapacity. You need to list all people who will need to be notified about your request, including relatives, and state whether there are people who are likely contest your petition.
Finally, your application should state what rights you feel you need to care for the protected person (medical, financial, etc.).
Once you have filed all necessary guardianship documents with the court, you will need to pay a filing fee, or apply for a fee waiver, and notify all involved parties of your petition. Each state has different rules for proper notification, so be sure to consult the court in your state for specific information.
Some Alternatives to Guardianship
Before filing for guardianship, you may want to explore other alternatives that will allow you to bypass the legal process yet still give you the right to make necessary decisions for another. For children, you might seek temporary guardianship without the court. In this instance, the parents or current guardians assign guardianship rights to you for six months. Instead of petitioning the court, the parents simply sign and notarize the guardianship agreement. For adults, you may consider durable powers of attorney for property or health care, which give someone limited powers to make decisions if the adult becomes incapacitated.
- Pine Tree Legal Assistance: Guardianship of a Minor
- Nolo: How Guardianships Work
- Family Law Self-Help Center: Guardianship
- Child Welfare Information Gateway: Guardianship
- California Courts: Duties of a Guardian
- Grandfamilies: Financial Assistance
- Nolo: Conservatorships and Adult Guardianships
- National Guardianship Association: What Is Guardianship
- The Law Dictionary: How to Give Temporary Guardianship of Your Child