Legal Guardian

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The legal guardian meaning refers to someone with the legal authority to make decisions on behalf of another person. Typically, the courts appoint guardianship over a child or an incapacitated individual. Each state has its own statutes that outline the duties, powers, and responsibilities of a guardian. To explore this concept, consider the following legal guardian definition.

Definition of Legal Guardian

Noun

  1. A person with the legal authority to assume care of, and make decisions for, another individual.

What is a Legal Guardian?

A legal guardian is someone appointed by the court to manage the personal and financial affairs of another person. The arrangement typically involves a child, but the courts may establish guardianship for an incapacitated adult as well. In some situations, a parent, spouse, or close relative can appoint a guardian for their loved one.

Once appointed, the guardian becomes responsible for advocating and making decisions for that person, called the “ward.” The duties associated with this role range from everyday tasks, like arranging meals, to making major financial decisions. In all adult legal guardian examples, guardianship does not end unless a court approves the termination or the ward dies.

Conservator

Some states use the terms conservator and guardian interchangeably, while others differentiate between the two. In California, for example, a legal guardian provides care for a child, and a conservator acts on behalf of an adult.

In a handful of states, including Oregon, a guardian and conservator have very distinct roles. A guardian manages the ward’s personal and medical affairs, and the conservator manages only the ward’s finances. The court can appoint one person for each role, or one person to fill both roles.

Legal Guardian of an Adult

If an adult cannot properly care for himself, or make reasonable decisions, the court can deem him incapacitated. The definition of incapacitated varies widely by state law. However, the term generally describes an adult unable to properly care for themselves due to a physical or mental disability. The courts limit the powers of a legal guardian of an adult to facilitate the incapacitated person’s independence and self-reliance.

Types of Adult Guardianship

Most states recognize three types of adult guardianship:

  • Guardianship over the Person – With this type of guardianship, the guardian becomes responsible for the ward’s well-being and care. The guardian makes personal and medical decisions on behalf of the ward.
  • Guardianship over the Estate – A guardian of the estate makes financial decisions for the ward. Typically, the guardian must obtain court approval before spending or selling of the ward’s assets.
  • Guardianship over the Person and Estate – This type of guardianship allows the guardian to make personal, financial, and medical decisions for the ward.

A guardian’s duties will vary depending on the type of guardianship and the incapacitated adult’s abilities. An example of legal guardian duties include:

  • Paying bills
  • Collecting assets
  • Making investments
  • Supplying clothing, food, and shelter
  • Authorizing medical treatment
  • Scheduling medical appointments
  • Ensuring adequate home care

Terminating Guardianship of an Adult

In most cases, terminating guardianship of an adult requires a court hearing. Either the guardian, a relative of the ward, or the ward himself can petition the court to have the guardianship terminated. In most legal guardian examples, the court will terminate the guardianship when:

  • The incapacitated adult no longer requires a guardian
  • The guardian resigns
  • The guardian cannot perform his or her duties
  • The incapacitated adult dies
  • The guardian fails to comply with his or her court-ordered duties

Legal Guardian of a Child

A legal guardian of a child is someone other than the child’s parents that assumes responsibility for the child. The person takes on the role of a parent by providing the child with day-to-day care. They also make all legal decisions on behalf of the child. Generally, the court appoints a legal guardian of a child when:

  • The parents voluntarily consent to the guardianship
  • The judge finds that parental custody is not in the child’s best interest
  • The parents have abandoned the child 

When someone seeks to establish a guardianship, the child’s family members have a right to know. They can also object if they do not feel the arrangement is in the child’s best interest.

Once appointed by the court, a legal guardian of a child has the same responsibilities and powers that a parent has. In all legal guardian examples, the appointed person must fulfill certain duties, which include:

  • Providing a place of residence
  • Applying for public benefits on behalf of the minor child
  • Providing necessities such as clothing, food, and a stable home
  • Making medical decisions
  • Maintaining the child’s physical and emotional wellbeing
  • Making educational decisions

Unless the court has terminated parental rights, the natural parents retain financial responsibility for the child. However, a guardian can seek financial benefits, such as social security, for the child where appropriate.

Terminating Guardianship of a Child

A child guardianship is usually temporary, and parents can terminate the arrangement at any time. Terminating guardianship of a child may also occur if:

  • The child turns 18 years of age
  • The agreement or order specifies a time-frame for the guardianship
  • The guardian resigns
  • The child or guardian dies
  • A judge deems the guardianship unnecessary

Guardian Ad Litem

In order to determine the best interests of a child, a judge may appoint a guardian ad litem. Unlike legal guardians, a guardian ad litem does not take on a parenting role. Instead, this individual acts as the child’s voice in custody, parental termination, adoption proceedings, or other court proceedings.

Becoming a Legal Guardian

The steps for becoming a legal guardian depend on state law. Whether the ward is a child, or an incapacitated adult also plays a part in the guardianship process. However, most states have similar requirements that a proposed guardian must meet. Becoming a legal guardian requires the guardian to:

  • Be at least 18 years of age
  • Be a U.S. citizen
  • Not have any felonies or records implicating dishonesty
  • Not have any charges related to domestic violence, abuse, or neglect
  • Be able to care for the child or incapacitated adult

Becoming a Legal Guardian of a Child

The process of becoming a legal guardian of a child starts by petitioning the court. The proposed guardian must pay a fee at the time of filing. Once the court reviews the petition, it interviews all interested parties.

If the child’s parents dispute the guardianship, the petitioner will need to present evidence to the court. The evidence should prove that the parents cannot adequately care for the child.

The court may also order a home visit and a criminal background check of the individual interested in becoming a legal guardian of a child. After reviewing the facts of the case, the judge will render a decision regarding guardianship.

Some examples of legal guardians involve parents appointing someone to care for their child should they die or become incapacitated. To appoint a guardian, a parent must add a clause to their will specifying the guardian.

Becoming a Legal Guardian of an Adult

A person interested in becoming a legal guardian of an adult must obtain an affidavit to submit to the court. The affidavit certifies that the ward cannot care for himself, and it specifies the disability. It requires the signature of a licensed physician and anyone else involved in the ward’s medical evaluation.

The individual interested in becoming a legal guardian of an adult then file a petition requesting guardianship. After the court rules out any objections, he or she decides the best interests of the ward, and appoints a guardian.

Abuse of Legal Guardianship

A guardian is responsible for making decisions for a ward while keeping their best interests in mind. Most often, a family member or friend petitions the court for guardianship over a loved one. In the absence of the family, the court may appoint a professional guardian.

Courts routinely give guardians broad authority to manage the ward’s affairs, including their finances. Unfortunately, some guardians use this authority to exploit their wards. This misuse of authority, coupled with a lack of oversight, has caused an increase in abuse of legal guardianship.

In 2010, the U.S. Government Accountability Office identified hundreds of cases involving financial exploitation, neglect, and physical abuse by guardians. The report discovered that the probate courts failed to screen and monitor guardians appropriately. It also revealed that, in just 20 cases, guardians had stolen around 5.4 million dollars from their wards. In recent years, states like Nevada have changed the laws to prevent abuse of legal guardianship.

Child Legal Guardian Example

In 1991, Kathleen Williams gave birth to a son, Nolynn Williams. The alleged father was not in the picture, so Kathleen asked her longtime friend, Cindy Hawley to help with babysitting. Cindy began babysitting Nolynn just three weeks after his birth. By the end of the year, she was caring for him full-time due to Kathleen’s financial and emotional issues.

At the start of the new year, the two women agreed that Cindy should legally become the child’s guardian. Cindy filed a petition with the court and in June 1992, the court appointed her his legal guardian.

While hospitalized in 1992, doctors diagnosed Nolynn with a rare kidney disease. They transferred him to an out-of-state hospital and Cindy stayed with him until his release over a month later. His medical condition required a strict diet and regular medication. The doctors believed he would need dialysis in the future.

In November 1992, Kathleen filed a petition to terminate the guardianship. The judge used the case of Marriage of Criqui, 14 Kan. App.2d 672, 798 P.2d 69 (1990) as the basis for his decision. According to the rule of law in Criqui:

“The parent seeking the custody change must show not only that she is fit, but also that the change of custody materially promotes the child’s best interests and welfare.”

The court concluded that Kathleen failed to show that termination of guardianship was in the child’s best interest.

Appeal and Reversal

Kathleen appealed that ruling, and the Supreme Court of Kansas reversed the lower court’s ruling. This decision claimed that, unless there is good evidence that a parent is unfit, he or she has a fundamental right to custody of their children. The court concluded:

“In the present case, the trial court erred in holding that Kathleen was required to show that a change of custody would materially promote the welfare of her minor son, Nolynn, before she could regain custody and terminate the existing guardianship. As Kathleen was not found unfit, she is entitled to the relief sought.”

Related Legal Terms and Issues

  • Best Interests of a Child – A doctrine used by the court to determine which parent is suitable for ensuring the health and happiness of a child during custody proceedings.
  • Consent – To approve, permit, or agree.
  • Defendant – A party who is the target of a lawsuit in civil court, or who stands accused of, or charged with, a crime or offense.
  • Domestic Violence – Violent, abusive, threatening, or coercive behavior within the home, typically inflicted by one family or household member on another.
  • Hearing – A proceeding in which the court hears an issue of fact or law by hearing evidence and testimony presented, and then makes a decision.
  • Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
  • Probate Court – The division of the judicial system that deals with matters relating to wills, trusts, estates, guardianships, and conservatorships.