The Basics of Adult Legal Guardianship

Around 12 million people in the US require long-term care. 

Without advance planning directive, some of these adults will need a legal guardian to make their decisions for them.

If you have an adult relative who you feel will need a legal guardian, there are many things to learn about the process.

Read on to learn more about the concept of legal guardianship for adults and what you’ll have to do if you want to become a guardian.

When Should I Apply for Legal Guardianship?

If you feel that your loved one is incapable of making responsible decisions for themselves, it might be a good idea to consider guardianship.

A court will consider applications for legal guardianship in respect of adults with disabilities, or those who have reached an advanced age and are no longer mentally competent. This incompetence need not be absolute; many adults with guardians remain in possession of most of their mental abilities.

Is Legal Guardianship Necessary?

This is the central question in all adult guardianship cases. If the adult has a valid Power of attorney, a guardianship may not be needed.

Power of Attorney

The legal concept of power of attorney gives one individual the contractual right to make certain decisions in respect to another individual.

There are financial powers of attorney and healthcare powers of attorney. Each of these should be stipulated by a separate legal document.

The reason why power of attorney is a preferable arrangement in many cases is that the adult selects the person who is to have the power. If someone creates a legally binding document specifying who should assume power of attorney over their affairs, this takes effect if and when they become legally incompetent to do so themselves.

What’s Different About Legal Guardianship of an Adult?

Because adults are considered, by default, responsible enough to take care of themselves, legal guardianship can be much trickier to secure in respect of an adult than a child. However, it is still possible.

To secure a right to adult guardianship, there are certain things you’ll have to prove to a court. The key consideration is proof that the person is incapable of making important decisions for themselves.

In certain cases, such as where the person is in a coma or has very severe dementia, this won’t present a problem. However, most situations will be less clear cut than this.

The vast majority of adult guardianship cases involve individuals with many of their mental faculties. Such people might have no issue making themselves understood, but could struggle to manage their financial or healthcare affairs.

A person like this might not appear to need a guardian and may object strongly to the idea themselves.

However, that’s not to say that guardianship isn’t the best course of action. If a person’s behavior puts them at serious risk, even if only on occasion, guardianship may be the most effective way to keep them safe.

However, a judge must have regard for the constitutional right to self-determination. An adult should be free to make their own choices, even if these choices seem poorly thought out or even dangerous. An exception to this is only possible where a doctor determines that a person is medically incapable of looking after themselves.

Who Should an Adult Guardian Be?

If there is no alternative but to apply for legal guardianship, the most important thing to consider is who should occupy the role. A child or sibling of the vulnerable person is the most common choice.

However, if there is more than one suitable candidate, there may be a dispute as to who should do it.

If there is disagreement over who a legal guardian should be, finalizing the arrangement can be a long and arduous process. However, you should always try to agree on matters of this nature privately rather than going to court.

If your family is struggling to come up with a solution, it’s a good idea to hire a lawyer. A professional with expertise in this area will be able to highlight all the rights and responsibilities involved in the role and help you come to a decision on this basis.

If no suitable family member or friend can be found, a county-appointed guardian may be necessary. This is not ideal, as a county-appointed guardian is not going to be able to care for a ward in the same way a family member would.

What Is a Guardian Ad Litem?

A guardian ad litem is a guardian that the court appoints to protect a child’s interests in a single case. Courts will only take this course of action where they feel that a vulnerable person needs it, usually in a dispute around their estate or the arrangements about their continuing care.

It is important to note that a guardian ad litem is not the same thing as a county-appointed guardian. The former assumes the role of guardian only for as long as is necessary for the legal matter at hand.

A lawyer usually assumes the role of guardian ad litem. A judge may appoint a guardian ad litem without the ward’s consent if they feel the situation requires it.

Keeping Your Loved One in Safe Hands

Every adult wants to be able to take responsibility for themselves. Unfortunately, whether due to age or disability, there are some people for whom that isn’t a possibility.

If no other arrangement will work, legal guardianship can provide a dignified method of ensuring their safety and happiness.

To learn more about how we can help you with matters relating to the care of an adult, contact us today.

The Basics of Child Guardianship

Today, there are over 400,000 children living in out-of-home care. 

There are manyreasons for this. While some of these children have no living parents, the majority do have at least one living parent.

If you know a child whose parents are unable or unwilling to take care of them, you could consider applying for guardianship to ensure that their rights are protected.

Read on to learn more about child guardianship and whether it might be a good option for you.

What Is Guardianship?

So, what does it mean to be a guardian? Child guardianship is a legal process that gives guardians the right to make certain decisions in respect of children (a child under guardianship is called a ward).

These decisions will often mirror parental decisions. For example, a guardian may be entitled to decide where a child attends school, where they should live, and what medical treatments they should receive.

Guardians are also generally responsible for a child’s day-to-day requirements. This includes the provision of food and housing, and transport to and from school and other activities.

There is also a form of guardianship in which a guardian takes charge of just a child’s estate. This is common in situations where the child has significant wealth, or where they require ongoing medical care. A guardian’s role here is to ensure that funds are used responsibly, in the way that best serves the interests of the child.

In all cases, guardianship continues until the child turns 18. 

Is Guardianship Necessary?

Applying for legal guardianship is a complex and potentially costly affair. You should therefore try to avoid it unless it’s entirely necessary.

In a case where a child has no parental figure, it will usually be required. Quite simply, a child needs a competent adult to manage their affairs, financial and otherwise.

Who Should Act As a Child’s Guardian?

If a deceased parent has named someone to act as guardian in their will, the responsibility will fall to this person in most cases. If there is a dispute over their suitability, the judge will place a lot of emphasis on the wishes of the parent but will independently evaluate suitability.

In many instances, however, more than one person might be well-suited to the role of guardian. If there is a dispute as to who should do it, the application can be a much more difficult process.

If there is disagreement as to who should occupy the role of guardian, a family lawyer can help you to tease out the important issues. Guardianships impose obligations which your lawyer will understand and be able to explain. Usually, the person best-positioned to meet these obligations will be the best guardian.

If no one from the family is fit to act as guardian, a county-appointed guardian may be required. 

Child Guardianship

Courts recognize that children are not legally capable of making important decisions for themselves. Therefore, a child who does not have a responsible adult in a position to make such decisions is assumed to need one.

So unless there is disagreement from another potential guardian of the child, courts are usually happy to consider a willing adult for the role.

Adults, on the other hand, are assumed to be able to take care of themselves. While this is not true in every case (such as where a person is disabled or suffering from dementia), judges require substantial proof that an adult is incapable of making important decisions before making them a ward.

The Benefits of Child Guardianship

There are a couple of reasons why child guardianship might be right for you.

Guardianship allows children to receive basic care where their biological parents are not in a position to provide it. 

It is a more secure option than custody. While custody of a child allows you to see to the day-to-day welfare requirements of a young person, it confers very few solid rights in terms of their long-term care.

Guardianship can also be used in cases where a child has to live away from home but still has a good relationship with their parents. This might be due to attending school in a different state, for example.

What Does a Child Guardianship Lawyer Do?

Child guardianship cases are not always straightforward.

A child guardianship lawyer will be able to advise you whether or not you need a child guardianship. If you do, they’ll support and inform you through every step of the process.

What Is a Guardian Ad Litem?

If a judge feels it is necessary in a given situation, they can appoint a guardian ad litem. This is a person who represents the interest of the child in any legal action that concerns them.

The guardian ad litem will usually be a lawyer. It is important to note the difference between a guardian ad litem and a county-appointed guardian; a guardian ad litem is an attorney that participates in the legal proceedings only.

These figures ensure that the interests of the child are the guiding objective in all legal matters.

Give a Child a Chance at a Better Life

Nobody wants to see a child in distress. If a young person does not have a responsible adult who can make important decisions for them, it will have huge implications for their quality of life.

When there is no better option, a child guardianship can be a positive force in the life of a vulnerable young person.

To learn more about how we can help you become a legal guardian, contact us today.

How can I appoint a guardian for my child?

Little daughter closing dads eyes with hands and laughing after child custody caseAppointing a guardian for your child or children is a good idea because the alternative is not appealing. If you do not appoint a guardian to watch over your children, the courts decide who the guardian is going to be—even if it’s not the person you would have picked yourself.

How to choose a guardian

A guardian is a trusted party—not always a relative—who can care for your child or children when you can’t. While it would seem logical that a relative would automatically be named a guardian, the courts can choose anyone who steps forward to be guardian. That volunteer may not be someone you would choose or trust to care for your child or children.

Beyond trust, consider your options for a legal guardian carefully. The right guardian:

  • shares your values and religious priorities,
  • is physically and mentally capable to care for your child or children,
  • can raise them in the ideal location,
  • is able to continue contact with the children’s family (if you want that to happen),
  • has the capacity (even with other children) to take your child or children in.

Your chosen guardian must be an adult; minors are not legally granted guardianship of other minors. Ironically, you may not need to consider their financial responsibility if you leave funds for your children’s care; another party can be named for the financial aspect.

How to appoint a guardian

To name a guardian for your children in case you die, contact an attorney to draft a will that spells out your wishes for your children and your financial assets. If you do not trust your appointed guardian with your assets, you can include specific directions for any funds you leave behind for the care of your children.

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