LEGAL GUARDIANSHIP – A Basic Understanding of Minor and Adult Guardianship

by | Jan 16, 2018

By: Kelly Bennett, Law Offices of J. Jeltes, Ltd.

WHAT IS A GUARDIAN? A permanent legal guardian is a person who is appointed by the court who is legally responsible for another person or persons. A Guardian can be appointed for a minor child or for an adult who has been adjudicated as disabled.

Minor Guardianship:

A guardian for a minor is appointed by the court and is legally responsible for the child until discharged by the court, or the child turns 18. This person is often a grandparent, aunt or uncle, or a family friend. A child under 18 years of age whose parents have either: (1) died, (2) agreed to guardianship, (3) whose whereabouts are unknown, or (4) who cannot or will not care for the child, needs a guardian.

There are three types of guardianships: (1) Guardian of the Person, (2) Guardian of the Estate, and (3) Guardian of the Person and the Estate. The rights and responsibilities of the guardian are dependent on what type of guardianship is ordered. A Guardian of the Person has the following rights and responsibilities: (1) make day-to-day decisions for the child; (2) take custody of the child; (3) enroll the child in school; (4) shelter, clothe, and feed the child; (5) make sure the child attends school; (6) pay the child’s expenses; (7) obey court orders relating to the child; (8) consent to the child’s medical treatment; (9) apply and receive possible public benefits for the child; and (10) keep the child safe. A Guardian of the Estate is responsible for the care, management, and investment property owned by the minor. A Guardian of the Estate and Person combines the duties of the two.

Minor Guardianship is designed to be “easy in, easy out”, which means that ending a minor guardianship is not as complicated and not as difficult to modify as a custody judgment between parents. By it’s nature, there is a lack of permanence in minor guardianship, even though the guardian is called “permanent legal guardian”. Adoption is the only permanent route but is also more difficult to obtain because parents have superior rights to custody of their children. A guardian or a parent must ask the court to return the child to the parent or to change guardians. Parents and guardians cannot discharge a guardianship without the court’s permission. The court will only end guardianship if it is in the child’s best interests.

Adult Guardianship:

A guardian for an adult is appointed by the court and is legally responsible for an adult ward who has been adjudicated disabled, as well as the adult ward’s minor children and/or adult dependent children. Guardianship is supposed to be used only to the extent necessitated by a person’s actual mental, physical, and adaptive limitations.

Guardianship for an adult might be considered if your adult child is on the Autism spectrum or has Down Syndrome and can live somewhat independently, but still needs someone to assist them. Or it could be your parent who has early stages of Alzheimers or Dementia and needs a guardian to make decisions, and prevent them from becoming unintentionally homeless or taken advantage of by a scam artist.

In order to have a Guardian appointed to an adult, there must be an adjudication of a disability. Adjudication of disability is the term used for both the guardianship process and the end result. The person for whom a guardian is appointed will be legally adjudicated disabled at the end of the court process. A person with a disability is defined by statute as a person 18 years or older who (1) because of mental deterioration or physical incapacity is not fully able to manage his or her person or estate, or (2) is a person with a mental illness or developmental disability and who because of mental illness or developmental disability is not fully able to manage his or her own person or estate, or (3) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his or her estate as to expose the person with disability or dependents to want or suffering. (*#3 alone is not likely to be the reason for an adjudication of disability.) A medical report from a doctor is necessary to provide the court with the specific disability finding.

Like minor guardianship, adult guardianship has Guardianship of the Person, Guardianship of the Estate, and Guardianship of the Estate and Person. In adult guardianship, A Guardianship of Person covers two prominent issues: (1) medical decision making, and (2) residential placement. Guardianship of Estate is for persons who cannot manage their financial affairs, and generally who have sufficient assets and/or income for a court to find it to be necessary to have a guardian appointed. There are some less intrusive alternatives to guardianship that a court might find appropriate, depending on the disabled person’s individual situation.

Adult guardianship has an additional layer: Plenary Guardianship and Limited Guardianship. Plenary Guardianship is the complete adjudication of disability as to a person, an estate, or both. This is for persons who do not have the capacity or understanding to make or communicate personal decisions or manage their financial affairs. A Limited Guardianship is for persons who lack some but not all capacity to make personal decisions or handle their estate. A Limited Guardianship cannot be ordered if the doctor’s report makes a finding that the person is legally incompetent. A Limited Guardianship is less intrusive and more individualized, but it is also more complicated because the disabled person, the guardian, and other third parties need to understand the limits, and so it is less frequently ordered.

A Guardian of the Person must be willing and able to make a report each year to the court regarding the ward’s mental, physical, and social condition; present living arrangement; and a summary of the medical, educational, vocational, and other professional services. A Guardian of the Estate must be willing and able to manage the estate frugally, appear for legal proceedings involving the disabled person, and make an annual accounting to the court regarding the expenses incurred for the ward.

A Guardian ad Litem is a person who will be appointed by the court to gauge the appropriateness of the “adjudication of disability” and the proposed guardian. The guardian’s job will be to promote the well-being of a person with a disability and to protect them from neglect, exploitation, or abuse, and to encourage development of maximum self-reliance and independence. The Guardian ad Litem‘s job is to report to the court whether the proposed guardian should have those responsibilities.

As always, an attorney can help you determine what kind of guardianship is appropriate and navigate the court system.

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Content provided by Women Belong member Kelly Bennett

 

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