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Understanding Guardianship

Ask a Family Law Attorney for Legal Advice

Guardianship refers to the legal authority one person has to care for the personal interests and property of another person. In the case of family law, this most often refers to the legal authority one adult has to care for and house a minor child but can also apply to incapacitated or disabled wards. In the case of minors, guardianship is similar to legal custody, except that custody refers to a child’s biological parents.

Reasons to Set Up a Guardianship

There are a variety of common situations in which the implementation of a guardianship is necessary or at least extremely beneficial. In general, when one person is unable to care for themselves independently, a guardianship is called for, but may require the help of a family law attorney to prove in court.

Let’s go over three common reasons for guardianships:

  • When a minor child’s parents are deceased or their parental rights terminated, the guardianship of that child will pass to one of the potential guardians recorded on a court’s list. This can be a stressful process, with many family members such as siblings and grandparents fighting for guardianship. This guardianship will last until the child is 18 years old, at which point their parents’ estate would officially pass to them. If only one of the parents is deceased, guardianship falls inherently to the other parent unless extenuating circumstances apply.
  • When an adult becomes mentally incapacitated, it may be possible for a family member to file for guardianship of that adult in order to provide them with the care and protection they need. However, this can be tricky to obtain. To gain this kind of guardianship over a mentally incapacitated adult, the desired guardian will have to provide a certified document from a doctor who has examined the patient to determine whether the adult in question could possibly continue to care for themself on any level or if a guardian is truly required for their general life care.
  • When an adult is functioning with diminished capacity, it may be possible for a family member to apply for limited guardianship; this means that the family member only has guardianship over certain areas of the person’s life, and that the person may otherwise retain their own legal authority. Like the above situation, this application for guardianship also requires the presentation of a certified doctor’s examination of the adult with diminished capacity, proving the necessity of guardianship.

How to Apply for Guardianship

A variety of steps must be followed in order to apply for guardianship. These steps may vary slightly depending on your state as well as the status of the person for whom the guardianship is being considered. Due to the complexity and intensity of family law, it’s a good idea to talk to a family law attorney regarding your situation and application for guardianship. A family law attorney can advise you on how to properly file and fill out the application. The basic steps of applying for guardianship include:

  • File a petition. The first thing someone will need to do when seeking guardianship is file a petition with the court declaring your interest in obtaining guardianship. If possible, it can also help to submit a letter of consent from the child’s parents with the petition. You may be required to pay a filing fee at this time.
  • Interview. After filing a petition, the court will likely request to set up several interviews with you as well as the child and the child’s parents if possible. In some situations the court may require a home visit and background check to be performed, confirming the legitimacy of the potential guardian. In some states, it might be necessary to attend a hearing.
  • Establish guardianship. Once the court has decided to accept your petition for guardianship, they will give you an order to establish guardianship. Depending on your state, you might be required to fill out a variety of forms, most of which can be found on your local government’s website and can be filed with the court.

To learn more about the process for applying for guardianship, or if you are unsure whether guardianship is called for in your loved one’s situation, seek legal counsel. Family law attorneys understand the legislation surrounding guardianship, as well as the many factors that can complicate what is already a high-stress process for many people.

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