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How Is Guardianship Determined?

8 min read
Francesca Toledo, J.D.

by Francesca Toledo, J.D.

Guardianship creates a legal relationship between a guardian and a ward, allowing the guardian to protect the ward’s well-being and finances and make critical decisions on their behalf. 

How a judge determines guardianship depends on whether the guardianship is for an adult or a minor. Every state handles guardianship differently, but judges are always interested in doing what is best for the ward.

How Is Guardianship Determined?

The way the court determines whether guardianship is necessary and who to appoint as guardian varies, depending on the type of guardianship.

Adult Guardianship

Adults over 18 need guardians if they are incompetent or incapacitated. Therefore, if you petition the court to become someone’s guardian, you must be well-prepared with sufficient evidence.

When you file your petition with the court to open the guardianship case, the court schedules a hearing. During the hearing, the prospective guardian may present the judge with evidence, including medical records and doctor’s letters, proving the potential ward’s incapacity. 

Once the judge has had the opportunity to review evidence and documentation, they decide on guardianship. They’ll determine whether adult guardianship is appropriate under the circumstances, and who would be best for the guardianship role.

Minor Guardianship

Minor guardianship is usually determined differently. 

If the parents have selected their child’s guardian, the judge will often respect their decision, unless they feel the chosen individual is not a good option. In this situation, the judge would appoint a different person.

Where guardians have not been pre-selected, the judge can determine who would be the best person to be the minor’s guardian. For minor children, judges prefer to choose someone the child already has an established relationship, to make the transition smoother.

Depending on the state, the judge may make determinations regarding guardianship at the hearing, or they may require an investigation before they can make a final decision. 

The Role of a Guardian Lawyer

A guardian lawyer can help you navigate your case if you’re seeking guardianship. The guardianship process can be confusing, but a skilled and experienced attorney knows how to handle your case to get you the most favorable outcome.

A guardian lawyer can help you with all of the following tasks for your guardianship case:

  • Drafting the petition to open the guardianship case
  • Filing your petition and supporting documentation with the court
  • Gathering important evidence
  • Representing you in court
  • Helping you file any additional paperwork after the appointment

Having a guardian attorney on your side can give you peace of mind and relieve your stress.

When Does Guardianship End?

For adults, guardianship rarely ends until the ward has passed away. However, if the ward suffers from a temporary incapacity and they recover successfully, the court can terminate the guardianship.

For minors, guardianship commonly ends once the minor reaches the age of majority, which is 18 in most states. Nonetheless, if the minor marries or dies, the guardianship ends. Should the minor still need a guardian after they turn 18, the guardian can petition the court to extend the guardianship.

Additionally, some guardianships are temporary. If the guardianship is temporary, it lasts for a short period, usually from six weeks to six months. 

Understanding Guardianship

Before understanding how guardianship is determined, it’s helpful to understand the two types of guardianship: adult guardianship and minor guardianship. 

Adult Guardianship

Adult guardianship is sometimes necessary when someone over 18 needs assistance with making important decisions and taking care of themselves.

Who Needs an Adult Guardian?

An adult needs a guardian if they suffer from mental incompetency or incapacity. 

The person seeking to become a guardian for an adult will need to present valid and sufficient evidence of the prospective ward’s incompetency or incapacity. Just because a person is struggling with mental health issues, is irresponsible with money, or makes questionable decisions, it does not mean they need a guardian. 

What Does the Adult Guardian Do?

Adult guardians’ responsibilities depend on the guardianship they have and the way the state handles guardianship.

Some states distinguish between the guardian of the person and the guardian of the estate. A guardian of the person handles responsibilities regarding the ward’s health and wellbeing, and a guardian of the estate manages finances and other similar responsibilities.

Other states have guardianships and conservatorships. Some courts use the terms interchangeably, while in others, guardianship refers to handling the ward’s well-being and conservatorship refers to finances.

Generally, guardians can handle the following tasks:

  • Ensuring the ward’s living situation is suitable
  • Making sure the ward’s basic needs are met
  • Managing the ward’s finances and assets
  • Making important decisions for the ward, especially those regarding healthcare

The court can help decide what the guardian’s responsibilities will be under guardianship. 

Who Can Be an Adult Guardian?

Whether a ward chooses their guardian depends on the situation. For example, a person may have an estate plan that includes a selection for a guardian should they become incapacitated. If the person becomes incapacitated at any point, the court would likely appoint the individual identified in the estate plan.

In other cases, the ward does not get to choose their guardian. Guardians do not necessarily have to be family or close friends. There are, however, some minimum requirements potential guardians must meet before a judge would consider them:

  • They must be at least 18 years old
  • They cannot have a criminal record
  • They must be citizens of the United States
  • They cannot suffer from mental incapacity or incompetency

The judge assigned to the guardianship case will examine several factors to determine who would best fit the guardian role for the ward.

Minor Guardianship

Guardianship for minors is often necessary for minors under 18 who either don’t have parents, or their parents cannot take care of them.

When Do Minors Need Guardians?

Minors require a parent or legal guardian to take care of them. Sometimes, events occur causing a child to need a guardian. The events that may trigger the need for minor guardianship include:

  • The child’s parents have passed away
  • The child’s parents are incarcerated
  • The child’s parents are physically or mentally incapacitated
  • The child’s parents cannot properly care for their child

If a child is left without a caretaker, a guardian can step in and take care of the child.

What Does a Guardian Do for a Minor?

Often, guardians for minors play a critical role in the minor’s life. 

A guardian for a minor may be responsible for the following:

  • Giving the child a home
  • Ensuring the child’s needs are met
  • Making decisions that impact the child’s life, especially those involving healthcare and education
  • Enrolling the child in school
  • Managing the child’s finances or inheritances

Some situations only call for a minor guardian for financial needs. For example, if a child inherits a large amount of money or receives a significant insurance payout, parents may want the child to have a guardian responsible for managing their money.

The judge can determine the needs of the child to assign responsibilities to the guardian. 

Who Can Be a Guardian for a Minor?

Like adult guardians, a minor’s guardian need not be a close family member or friend. It can be anyone responsible enough and well suited for the important role.

Minors rarely have a say in picking their guardians. Sometimes, if the ward is older, the judge may consider their opinion, but won’t decide based solely on the minor’s preferences.

Parents can choose their children’s guardians in some situations. For example, parents may detail in their estate plan who they wish to care for their children if they pass. If they do pass away, a judge would likely appoint the individual chosen by the parents. Some states also allow parents to choose guardians should the parents ever become unable to care for their child.

While every state has its requirements, a minor’s guardian must generally meet these criteria:

  • The prospective guardian must be at least 18 years old
  • They must be a citizen of the United States
  • They cannot have a criminal record including misdemeanors and felonies
  • They cannot suffer from incompetency or incapacity

Because minor guardians have such substantial responsibilities, judges usually like to make sure the person up for the role is caring and dedicated enough. 

An Unbundled Lawyer Can Help You with Your Guardianship Case

While having a guardian lawyer can significantly help you and your case, their services are costly. Fortunately, an unbundled lawyer can solve that problem.

An unbundled lawyer is the same as any other lawyer; the only difference is how they handle their services.

When you hire a traditional lawyer, you sign a contract, having them handle your case from start to finish. An unbundled lawyer, on the other hand, only handles the most critical parts of your case, allowing you to do some of the work and save money while still getting the legal help you need.

Unbundled Legal Help believes everyone deserves access to quality lawyers without the high legal fees. We have a network of lawyers ready to help you.

When you’re ready to begin, contact us and we’ll match you with an unbundled guardian lawyer in your area.

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