Guardianship is established by a court order. The court grants the guardian authority and responsibility to act on behalf of another person. The relationship is fiduciary, which means that the guardian is obliged to act in the best interests of the ward. The court supervises the guardian to assure proper actions on behalf of the ward. An individual may serve as guardian of a minor or of an incapacitated person. For a minor, the court considers which individual’s appointment will be in the best interest of the minor. In some states, a minor ward over fourteen can nominate his or her own choice for guardian. Any competent person may be appointed guardian for an incapacitated person. The appointee might be the spouse, an adult child or parent of the ward, or any responsible adult with whom the ward is residing.
To establish a guardianship, a petition is typically filed in state court where the ward lives. This petition usually names the potential guardian and provides information about the parties’ relationship (if any) and usually any pertinent information about the heirs or estate of the ward. If the ward is a minor, information about the minor’s parents and whether and where they are living is generally necessary. In the case of an adult ward, if mental incapacity is the reason for the petition, medical documentation should accompany the filing. Notice of the time and place of the hearing is given to the potential ward and other persons specified by statute.
The documents are served on the interested parties at which point the proposed ward or his or her relatives can object to the guardianship request. A hearing is held. If the court finds sufficient evidence to order the guardianship, it may issue subsequent orders, which govern the relationship and the guardian’s actions. The court may appoint a guardian if it finds the person is incapacitated and the appointment is necessary to provide continuing care and supervision of the person. Incapacity can result from any number of conditions, including, but not limited to mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of alcohol or other drugs. Essentially, the court must be convinced that the individual lacks sufficient understanding or capacity to make or communicate responsible decisions. The court may terminate a guardianship if a subsequent hearing proves that the need for a guardian no longer exists, or in the case of a minor, when the child reaches the age of majority.
A guardianship restricts the individual’s right to contract, marry, spend money, make decisions about their own care, or create a new will. The guardian may make personal decisions for the ward such as living arrangements, education, social activities, and authorization or withholding of medical or other professional care, treatment, or advice. A guardian must submit written reports to the court according to the court’s orders and the law of the jurisdiction in which the guardianship takes place. Generally, a guardian is not charged with managing the income or property of the incapacitated person; however, the guardian may receive funds payable for the support of the ward such as social security as a representative payee.
If a guardianship is contested, the court may appoint a disinterested third party to investigate and make recommendations. Usually called a guardian ad litem, this person evaluates both the necessity for a guardianship, and the appropriateness of the proposed guardian. The ward may also hire separate legal counsel. If the proposed ward is indigent, the court sometimes appoints counsel.