Guardianship

Guardianship is a legal relationship established by the court in which a person is given legal authority over another person when he or she is unable to make safe and sound decisions regarding his or her person, or property. Legal guardianships commonly involve minor children, but may also be ordered for developmentally disabled adults, or incapacitated adults. To explore this concept, consider the following guardianship definition.

Definition of Guardianship

Noun

1. The position and responsibilities of a guardian toward a ward.
2. The legal responsibility for care and management of another.

Origin

1545-1555        Middle English guardian + ship

What is Legal Guardianship

There are two main types of legal guardianship, both of which consist of appointing a person to act on behalf of another. These include guardianship of an estate, and guardianship of a person. Regardless of the type of guardianship, the individual is expected to act responsibly as caretaker. The arrangement of legal guardianship is meant to be temporary, as the goal is to restore the ward’s rights sometime in the future. On occasion, a guardianship can be permanent, remaining in effect until the ward is deceased, though the individual acting as guardian may be replaced by the court. This is often true if the guardianship is over an elderly or mentally ill individual.

Guardianship of Estate

Guardianship over an estate is ordered so that the appointed guardian can manage the assets of a minor child or other ward. In some cases, the guardian is appointed over an individual and his or her estate, in others, two separate guardians are appointed. An estate guardian is responsible to manage the ward’s assets, income, and property, and is often required to make periodic reports to the court. Such a guardian has no control over any other aspect of the ward’s life.

Legal Guardianship of a Minor Person

When parents are unable to care for a child, the court works to determine what is in the best interests of the child. The goal of appointing a guardian is to ensure the child is raised in a safe and stable environment, in which he or she can grow and develop properly. There are many instances in which a parent is unable to take care of a child, making a guardian necessary. For example, if one or both parents have a mental or physical illness that leaves them unable to properly care for their child, the court may appoint a guardian to ensure the child is taken care of. Other instances in which a guardian may be needed may include situations in which the child’s parents:

• Are in the military and deployed
• Are incarcerated
• Have substance abuse problems or are in rehab
• Have a history of emotional, physical, or sexual abuse

Responsibilities in Guardianship of a Minor

When an individual has guardianship of a minor child, he has the same duties and responsibilities the parents would have if they had custody of the child. The guardian is responsible for making all decisions regarding the health and wellness of the child, as well as his education. Guardians of a child may be relatives, family friends, or others who are suitable to raise the child. The basic responsibilities of such a guardian include:

• Providing the child with clothing, food, shelter, and other basic necessities
• Ensuring the child is safe and protected from harm
• Aiding in the development of the child’s physical and emotional growth
• Ensuring the child has proper medical and dental care
• Ensuring the child receives an education and that any special needs are taken care of

Guardianship vs. Adoption

While legal guardianship over a child may seem similar to an adoption, there are many differences. When a guardianship has been established, the biological parents often retain certain parental rights, such as keeping in contact with the child when it is reasonable. Additionally, guardianship is meant to be temporary, allowing the parents’ rights to be reinstated if the court deems them able to properly care for the child. An example of this is the placement of a child in foster care.

An adoption is final. Once the adoption is completed, the biological parents are not allowed to request that their parental rights and custody be reinstated. If it is a closed adoption, they cannot even have contact with the child. Adopted children become a legal part of their adoptive family, and these new parents have full and permanent parental rights.

Guardianship of an Adult

A guardian may be appointed for an adult person in certain circumstances, such as when a developmentally disabled person reaches a legal age, or when a person becomes incapacitated due to age or illness. For example, when an elderly person gets to the point where he can no longer care for himself, or his property, another individual may be appointed guardian. In such cases, the guardian is often a family member. Having a guardian appointed affects the ward’s rights, including his right to:

• Choose a residence
• Possess a driver’s license
• Buy, sell, or manage property
• Enter into a contract or file a lawsuit
• Consent to medical treatment
• Make end-of-life decisions
• Own or possess a firearm
• Get married
• Vote

Alternatives to Guardianship

Because being made a ward seriously impacts an individual’s rights, it is something that must be done by a court. There are many alternatives to guardianship in situations where an adult individual needs help with certain things. Such alternatives include:

• Alternate or Substitute Payee – manages the income of another individual.
• Healthcare Surrogate – makes medical decisions for another individual.
• Durable Power of Attorney for Healthcare – gives power to make medical decisions when the principal becomes incapacitated.
• Durable Power of Attorney – General – gives power to make decisions regarding an individual’s assets and day-to-day issues when the principal becomes incapacitated.
• Trust – specifies the Trustor’s wishes regarding his assets and estate in the event of death or incapacitation.
• Living Will – specifies the Testator’s wishes regarding healthcare and end-of-life medical treatment.

Temporary Guardianship

In an emergency situation, the court may appoint someone to a temporary guardianship, initially bypassing the lengthy process of determining guardianship through traditional means. This may happen, for instance, when parents of a seriously ill child are refusing to allow the child to be treated, if a child is in immediate danger, or a mentally ill adult individual is a danger to himself or another person. A temporary emergency guardian is often appointed without a hearing only in cases where a responsible individual is needed immediately to act on behalf of the ward, and the guardian’s powers are limited.

Example of a Limited Guardianship

Occasionally the court will instate a limited guardianship in which the appointed guardian has control only of certain aspects of the ward’s life. This may be done, for example, if a child’s parents are making a life-altering decision that is not in the best interests of the child. Such an action was taken in the 2013 case of Sarah Hershberger. In this case, 11-year old Sara, daughter of an Amish couple in Ohio, had been diagnosed with a form of cancer called T-cell lymphoblastic lymphoma. Sara began receiving chemotherapy treatments, but soon developed serious side effects. Sara’s parents, believing the treatment itself would cause her death, decided to end them.

The doctors believed that, without the chemotherapy, Sara had no chance of surviving the cancer, and so the hospital contacted the authorities, attempting to have Sara removed from her parents’ custody. When social services determined that Sarah’s parents were competent to care for her, the hospital took the case to the state’s appellate court, which sided with the hospital. A guardian was appointed to oversee and make decisions for Sarah’s medical care. Following the appointment of a guardian, the family fled the country to prevent their daughter from being forced into chemo. In Sarah’s case, the guardian was appointed solely for purposes of her medical condition, and was not authorized to make decisions regarding any other aspect of Sarah’s life.

Appointing a Guardian

Most commonly, a person is appointed a guardian by the court, based on the needs and what is in the ward’s best interest. The court considers the prospective guardian’s health, education, income, and relationship with the ward. In order to be considered to be appointed as a guardian, the individual must be over the age of 18, mentally competent, and must be physically able to perform the assigned duties. In a guardianship hearing, the judge will hear testimony from all involved in the case, including the prospective guardian. Anyone objecting to that individual being appointed guardian may present evidence at the hearing.

Types of Guardians

Most often the court appoints a family member or close friend of the ward as guardian. For example, an adult child may be appointed guardian over a mentally ill parent. Some states have public guardians, which means certain public agencies may be granted guardianship over a ward. Such a guardian is paid to act on behalf of the ward, the income being taken from the ward’s assets.

Certain types of professionals may act as guardian. This may be an attorney or other professional who takes on the guardianship when the ward’s family and friends are unable to provide him or his estate with proper care. Professional guardians are most often given guardianship over an individual’s estate, rather than his person.

Terminating Guardianship

In most cases, guardianship is temporary, and ends when the conditions in the court order have been fulfilled. Otherwise, guardianship may be terminated in the following manner:

1. Termination by a judge, through a court order
2. Death of the ward
3. A child ward reaches the age of majority
4. Marriage of the ward (rare). In such a case, the marriage terminates guardianship of the person, but not the estate.

Related Legal Terms and Issues

• Asset – Any valuable thing or property owned by a person or entity, regarded as being of value.
• Authority – The right or power to make decisions, to give orders, or to control something or someone.
• Custody – The protective care of something or someone.
• Estate – All of the things a person owns, including property, and financial assets.
• Hearing – A proceeding before the court at which an issue of fact or law is heard, evidence presented, and a decision made
• Jurisdiction — The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
• Principal – In an agency relationship, the principal is the individual giving authority to another to act on his behalf.
• Testator – A person who makes, or has made a will, or who dies leaving a will.
• Trustor – The creator of a trust.