How To Establish Legal Guardianship

How To Establish Legal Guardianship

by | Aug 29, 2018 | Family Law

Under certain circumstances, it may be necessary for someone other than a parent or direct relative to become legally responsible for a child or adult who is unable to make decisions for themselves. In those cases, a legal guardianship is established, and the person or people that are being taken care of are known as the “ward” or “wards”.
 

What Do Guardians Do?

A guardian can be chosen by a court, or be established in a legal document such as a will. Guardians are entrusted to act in the best interests of their wards and to make decisions for them when needed.

It is common for the role of a guardian to be similar to a parent, including doing things like:

  • Consenting to medical care or treatment
  • Buying common living necessities
  • Arranging for education
  • Managing finances

Because legal guardianship is such a big responsibility, courts often prefer to select people with ties to the ward whenever possible. This usually means a relative whenever possible, but could be someone else who has a connection to the ward in some other way.
 

Legal Guardianship Of A Child

To establish legal guardianship of a child, you must file the appropriate papers in court. The first is a petition for guardianship stating your interest in becoming a guardian. The second is a letter of consent from the child or children’s parents.

Once those documents have been filed, the court will set up interviews with you, the children’s parents, and (possibly) the child. The court may also speak to anyone else with an interest or knowledge of the child’s well being.

In most cases, a criminal background check is conducted, as well as a home visit or inspection to ensure that the child will be living in safe and habitable conditions.

As with all matters involving children, courts consider the best interests of the child when making their decisions. If, after review, the court decides that becoming the child or children’s guardian is in their best interest, you will be granted legal guardianship.

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Guardianship Of An Adult

In rare cases, the court may also appoint a guardian when a legal adult in incapable of acting in their own best interests. This may be due to mental or physical disability, disease, or drug and/or alcohol addiction.

One of the most famous examples of this is Britney Spears, the pop musician who exhibited such alarming behavior in 2008 that her father and her lawyer were appointed as her guardians (known in this case as a “conservatorship”). She was legally prevented from making certain decisions on her own and:

Her most mundane purchases, from a drink at Starbucks to a song on iTunes, are tracked in court documents as part of the plan to safeguard the great fortune she has earned but does not ultimately control.

While that example is quite extreme, it is not uncommon for adults with no immediate family who suddenly become incapacitated to have a legal guardianship established for them.
 

Becoming A Legal Guardian

Becoming legal guardian of a child or an incapacitated adult is a huge responsibility with a lot to consider. You should think very carefully about what’s involved and plan accordingly.

It’s also a good idea to consult a lawyer if you have any questions or need help. The laws and precedents around legal guardianship can be confusing. Getting professional advice or assistance is recommended, especially when a ward’s health or safety is an issue.

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