How to Get Guardianship

A guardian is a person appointed by a court to make decisions for someone who cannot make them alone (Cornell LII). The process differs for children and adults.

Guardianship of a minor

Used when parents cannot care for a child, for example because of death, incarceration, illness, deployment or substance abuse. It does not end parental rights, unlike adoption.

• Parental consent makes it much simpler. Parents can also name a guardian in their wills.
• Without consent, the petitioner usually must show the parents are unfit or unavailable and that guardianship is in the child's best interests.
• The guardian handles daily care, school and medical decisions.

Guardianship of an adult

Used when an adult, because of dementia, serious mental illness, a developmental disability or brain injury, cannot make decisions about personal care or property.

Steps typically include:

1. Petition in the probate court, describing the person's limitations and why guardianship is needed.
2. Medical evaluation or report.
3. Notice to the person and close family members.
4. Court visitor or evaluator in many states, and appointed counsel for the person.
5. Hearing, where the person has the right to attend and object.
6. Order defining the guardian's powers, which courts are encouraged to limit to what is needed.

Less restrictive alternatives

Courts favor options that preserve independence:

• Durable power of attorney and health care proxy, if the person still has capacity to sign
• Supported decision-making agreements
• Representative payees for benefits
• Joint accounts or trusts

Guardian vs. conservator

In many states, a guardian handles personal decisions and a conservator handles money. See conservatorship.

Duties

Guardians must act in the person's best interest, involve them in decisions, file periodic reports with the court, and seek approval for major decisions in some states.

Ending or changing a guardianship

Minor guardianships end at 18 or when parents resume care with court approval. Adult guardianships can be modified or ended if the person regains capacity or a better arrangement exists.

Emergency guardianship

Courts can appoint temporary guardians quickly when there is an urgent risk of harm.

An estate planning lawyer or elder law attorney can prepare the petition and evidence.

Sources

1. Cornell Law School LII: Guardianship
2. Cornell Law School LII: Guardian