Guardianship provides a safety net for children who cannot be cared for by their parents or for adults who cannot take care of themselves. Find out the requirements to establish guardianship and the necessary court procedure.
Guardianship gives a person the legal right to take care and make decisions for another person, generally of a minor or an adult who cannot make decisions for themselves, such as an elderly or disabled person. In addition to managing attention to this individual, known as a ward, a guardian also manages their finances. When a guardianship is from an adult, it is sometimes also called conservatorship.
Guardianship vs. Custody
Guardianship differs from custody in several ways. The custody refers only to a minor child, while the guardianship can be of a child or an adult. When someone gets custody of a child, they get parental or grandparental rights. A guardian has no parental rights and is simply appointed to take care of the ward and ward finances. When the guardianship of a child is established, the child’s parents retain their parental rights. Custody can override parental rights, or at least violate them.
When Guardianship Is Granted
Guardianship is usually instituted when a child or adult needs someone to care for them and manage their affairs.
The children’s protection can be granted in the following situations:
- The child’s parents agree to guardianship.
- Parental rights are extinguished.
- A court rules that the child must be placed with a guardian.
It is common for military parents to appoint guardians for their children so that if they are posted overseas, there is someone they trust to take care of their child in their absence. Parents often also name a guardian in their will so that if they die leaving an underage child, they can indicate to the court their preference for a guardian.
Adult guardianship can be awarded when an adult is incapacitated, and can’t make their own decisions. This could happen due to:
- Sudden illness.
- A chronic disease that gradually leads to disability.
- A disabled person who reaches adulthood and needs ongoing care.
- An adult who exhibits behavior that indicates that he could cause harm to himself or others.
How to Get Guardianship
Guardianship can only be established with a court order, so to obtain guardianship over a minor or an adult, it is necessary to file a petition, even if the child’s parents have already agreed to grant protection. This process is usually done at the probate court in the county where the prospective ward resides. The forms are available on the website of the local probate court or at the court clerk’s office. After the petition is filed, the ward is notified and the court sets a hearing to determine whether guardianship is necessary or appropriate. Evidence, such as a medical examination, is necessary for the protection of an adult. Guarding a child requires proof that the child needs supervision or care.
It is possible for an adult to avoid a guardianship situation by creating an estate plan, which can consist of many legal documents, and prepares for all eventualities. To do this, you need a health care advance directive and/or health proxy so that you can appoint someone to make health care decisions for you and also indicate what your end-of-life health care wishes are. You can also choose to create a living trust to ensure your finances are protected and managed. A power of attorney appoints someone to manage a business and financial dealings on your behalf should be unable to do so.
Guardianship can be an important lifeline for children or adults in need. Making sure you are prepared for all eventualities – for yourself and your loved ones – can give you peace of mind.
Our Kid’s Protection Plan will educate you on the steps you need to take, help you establish the necessary protocols and safeguards, and provide you with all the necessary documents to ensure that your children are immediately and properly cared for in the event of incapacity or death.
Call us today for a Kids Protection Plan consultation at (941) 275-2785 or schedule here.