Key Steps How to Become a Legal Guardian

You might be wondering how to become a legal guardian. Guardianship refers to a legal process designed to protect people who are incapable of caring for themselves, whether they are minors, incapacitated, or disabled. An individual who needs special protection may be appointed a legal guardian by the court. So, if you wonder how to be a legal guardian, it is better to know all the key information firstmost. 

How Do I Become a Legal Guardian?

An individual’s legal guardian is responsible for their well-being, as well as making decisions regarding their personal, medical, and financial interests. The guardianship process and requirements for naming a guardian vary depending on state laws; however, they are always based upon whether there is a legal need for guardianship over the person.

What Circumstances Can a Guardian Be Appointed for an Adult?

Courts can appoint guardians for adults who are physically or mentally disabled. It is much harder to have a judge appoint a guardian for an adult because this can deprive them of their legal rights.

Due process is required, including service, legal counsel, right to attend any hearings or proceedings, questioning and confronting witnesses, and ability to present evidence on his or her behalf.

Similar to the guardianship of minors, guardianship can be split into the guardian of the person and guardian of the estate. For example, someone might need a daily guardian to assist with basic needs and medical care but is fully capable of handling legal and financial affairs on their own.

What Are The Requirements For Becoming the Guardian of a Minor?

Legal guardianship could be required by anyone at any age, depending on the circumstances, but it is most commonly used with minor children. The court can appoint a guardian for a minor if their parents die, abandon them, surrender their parental rights, or are otherwise unable to care for them.

A guardian may be granted two sets of rights: guardian of the person, and guardian of the estate.

Guardian Of The Person

Guardians of minors have the responsibility to provide for the minor’s physical and personal needs, and have the right to consent on their behalf. It is the legal guardian’s responsibility to provide food, shelter, clothing, and education for the minor. If the child’s parents are living, they are still legally required to provide financial support after a guardian is appointed.

Guardian Of The Estate

It is the guardian’s responsibility to take care of the minor’s assets until he is able to take care of them himself. A fiduciary duty requires them to manage the ward’s property responsibly.

It is possible to separate these roles, but both sets of legal responsibilities can be given to one individual. As with most legal matters involving children, the court will consider many factors when appointing guardians, including:

  • Stability of the proposed guardian
  • Preferences of the child
  • Details about the proposed guardian’s character
  • Relationship between the proposed guardian and child’s family
  • The proposed guardian’s ability to provide proper care

Courts may appoint more than one guardian. Once the family court judge has weighed all the information, including input from any experts, a guardian/guardians may be legally appointed.

What Are The Legal Guardian’s Responsibilities?

In the case of a minor, the guardian acquires parental responsibility. It is their responsibility to feed, clothe, and take care of the child.

Guardians do not assume the parents’ financial obligations. It is not possible for a court to order a Special Guardian to pay maintenance, for example, or to calculate payments under the Child Maintenance Service (CMS).

What’s The Procedure To Establish Guardianship Of a Child?

Part 1: Deciding to Become a Guardian 

Consider whether becoming a legal guardian is right for you. Guardians are court-supervised caretakers for minors and incapacitated persons who are expected to look after their ward’s well-being as well as handle their finances. Reports on the ward’s progress must be submitted to the court periodically. Being a legal guardian comes with a great deal of responsibility.

Guardianships can only be granted to people who have proven their capacity to accept the responsibility. There is no requirement that you be a relative of the ward.

Ineligible applicants include those who:

  1. Have a criminal record, or have shown violence or dishonesty in the past
  2. Have a conflict of interest with the ward, such as owing them an outstanding debt or having the potential to benefit from taking advantage of the ward
  3. Do not have experience providing care or managing resources
  4. Do not have sufficient education to provide care or manage property and resources
  5. Are themselves a minor or incapacitated person

You might want to consider hiring an attorney. Declaring someone legally incapacitated can be a difficult process that can be further complicated if the person has substantial assets to manage, or is Native American.

There are alternatives to hiring an attorney if you cannot afford to do so. Legal aid organizations or aid centers associated with local law schools may exist in your community. These organizations offer legal services free of charge or at a reduced price. Contact the court or search online for these organizations.

Part 2: Filing Your Forms

Prepare the necessary forms and documents. Most forms can be found online at your state’s judicial branch website. You can ask a clerk at the courthouse for the necessary documents if you cannot find them online. You will need to complete the following forms:

  • A guardianship petition
  • A notice of hearing
  • A form listing the formal duties of a guardian

You will take the completed documents to your courthouse and submit them to the clerk of court with the appropriate filing fee. You will be given a hearing date after you file your forms.

You must notify interested parties, including relatives of the wards and state and county agencies after you file your petition. Be sure you review the instructions laid out by your state’s laws in order to properly notify the interested parties.

Part 3: Preparing for the Hearing 

Bring all of your documents to the hearing, including proof of service evidencing that you notified all interested parties. Organize your evidence and papers so that you can find them quickly and present them to the court when asked.

You will need to prove that the person needs a guardian. You should be able to describe the person’s daily routine, the services they use or need, and why they cannot manage their own needs and/or property. 

You may be permitted or asked to have friends and family members testify about your capacity as a guardian. Families, neighbors, and current caregivers may be able to assist and speak on your behalf at the hearing.

Part 4: Attending the Hearing 

Describe your reasoning for being the guardian in response to the judge’s questions. Describe how you will care for the ward, the support system you have in place to assist you, and how you are financially stable to do so.

Answer any objections you receive to your petition. Your request for guardianship may be challenged by others at the hearing. The guardianship processcan be contentious experience, especially if another party feels that you are trying to take away their loved one or gain control of the ward’s assets. Rebuttals should be addressed to the judge rather than to the challenger.

Your judge will decide whether you are named the guardian over the person after your hearing. In guardianship cases involving children, if the parents agree, the judge will typically allow guardianship if it is appropriate. If the parents object, the judge will grant guardianship only if staying with the parent(s) is not in the child’s best interests.

In the event that your petition is denied, you can try again or file an appeal.

You will receive a court order if your judge allows you to be the guardian. You should file the  order with the clerk of court.

You will be asked to update the court on the status of your ward at regular review hearings. You should be prepared to provide information on the ward’s health, medical treatment, education, and resource management. At this time, you can ask for additional authority from the judge if any new issues arise.

Initially, the guardianship arrangement may be reviewed every few months, but once the judge is satisfied that the arrangement is working, the reviews will occur annually.

Conclusions

Guardianship is something you must be certain you are capable of handling. Guardianship laws can be confusing, so it’s important to do things right the first time. You should contact a family law attorney who can help you develop a plan for the future. Find a local family law attorney near you today.

How To Become A Guardian Of A Child: FAQ

How Long Does It Take To Become A Legal Guardian?

If a guardian has been appointed by will, the guardianship becomes effective when the willmaker and all other individuals with parental responsibility have died.

How Much Does It Cost To How To Become Someone’s Legal Guardian?

It is common for legal guardians to incur only those costs associated with drafting and filing the guardianship petition. In the event that a guardian appointment is challenged by another living person with parental responsibility, this could become more complicated, and legal help and advice are always advised. Your attorney can explain the costs involved.

What is Special Guardianship?

In the case of special guardianships, the court appoints the guardian pursuant to the Children Act 1989. A Special Guardianship Order is often used as an alternative to adoption since the birth parent’s legal status is not wiped out.

Special Guardians can be anyone over 18 who is not a birth parent. Under certain circumstances, the Special Guardian can make decisions regarding the children even without the consent of the birth parents. Children who have been removed from their families and for emotional reasons do not wish to have their parents’ rights withdrawn may choose to use this method.

Article by Sofi Ostymchuk

Sofi Ostymchuk is a Content Lead and Legal Writer at Lawrina. Sofi manages the content on the blog, communicates with contributors, looks for interesting topics, and creates articles in cooperation with lawyers and law experts. If you would like to be a blogger for Lawrina, you can contact S0fi for all the details via email at s.ostymchuk@lawrina.com.

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