Guardianship — An Overview

Guardianship may seem easy to understand on the surface, but there is a lot more to it than you might realize. Firstly, guardianship is not the same as adoption. Where adoptions give the guardian permanent parental rights over a child, guardianship is temporary and does not normally remove all parental rights from biological parents. Secondly, guardianship is not limited to children.

Before petitioning for guardianship, here is a quick overview of what you should know.

The Guardian’s Role

The responsibility of a guardian is to provide for the day-to-day needs of a child or an adult. In the case of a child, parents may still be financially responsible if they retain physical custody; otherwise, the guardian is responsible for all financial needs of the child. And, whether a child or adult, guardians must get permission from the court before spending any money or selling assets or property.

Types of Guardianship

Having Guardian over the Person is when someone is given legal authority to make decisions over a child or adult’s well-being. For a child, this includes personal, medical, educational and financial decisions; for an adult, this includes consent for medical and end-of-life care, financial management and honoring pre-determined wishes.

Having Guardian over the Estate is when someone is granted responsibility to safeguard a child or adult’s financial assets. In the case of a child, this type of guardianship lasts until the child turns 18.

And becoming a Guardian Ad Litem is when a judge appoints someone to protect a child’s best interest during custody hearings.

Reasons for Guardianship

• Both parents of a child die;
• A child’s parents are going through a divorce;
• A child receives a large financial gift;
• A child lives with someone other than their parents on a long-term basis;
• A couple is looking to adopt; or
• An adult is found to be incapable of making their own decisions.

The Guardianship Process

To obtain guardianship over a child or an adult, one must first file a petition with a court in the county of which the child or adult has lived for at least six months. In the case of a child, a letter of consent must be included with the petition.

This is followed by interviews with the petitioner, the child, the parents and any other interested party, as well as a home visitation and criminal background check.

A judge will then review the petition and hear from any interested parties, after which the judge will either approve or deny the petition.

Depending on the circumstances, this process could take several months.

Termination of Guardianship

Guardianship ends when:

• The agreed upon terms have been completed;
• The guardian chooses to resign;
• The ward passes away; or
• a judge determines guardianship is no longer needed or it no longer serves the best interest of the child or the adult.

Whatever type of guardianship you’re seeking, it’s always best to contact a family law attorney to help navigate the potentially complicated and confusing process of becoming a guardian.