All states describe how the legal responsibilities work for a guardian. Certain laws must be followed for guardianship to be valid. The court holds authority over the process and who may be appointed guardian. For instance, in Florida, the court mandates that certain reports must be submitted to help the court supervise a minor’s guardianship.
However, if a guardian fails to adhere to the state’s regulations, they must appear in front of a judge to defend themselves and explain why they failed to fulfill their duties as a guardian. This may result in sanctions against the guardian, including removal as guardian or any other action the court decides necessary in the case.
The general duties of a guardian include maintaining and protecting the ward. In other words, ensuring that the individual they are the guardian of has adequate food, shelter, medical care, and financial support to continue in their lives. The guardian is legally responsible for overseeing and managing these aspects of the ward’s life.
How Does the Guardianship Process Work?
Guardianship is a legal process. Hence, it requires the involvement of the state and legal system. The court must authorize and approve the person who will be the guardian. Guardianship is meant for individuals who cannot care for themselves and cannot make their own decisions.
For instance, these may include people who suffer from dementia, Alzheimer’s disease, developmental disability, chronic illness, or other such conditions that cause functional limitations. Before guardianship is determined, it must be shown that the alleged incapacitated person (AIP) lacks capacity. Guardianship has to be the last resort. Each state has a process in place determining who cannot care for themselves.
The court procedures for guardianship are as follows:
- First, a petition is filed. Any competent adult can file with the court a petition to determine another person’s incapacity. After the petition is filed, the court will assign an examining committee of three members. The examining committee will evaluate and report the results to the court. In addition, the court will provide an attorney to represent the AIP;
- Next, a hearing is held. During the hearing, the court will review the reports of the examining committee. If the court holds that the AIP is incapacitated, the court must then determine if there is another alternative to guardianship and;
- As the circumstances in the case suggest, a guardian will be assigned if no alternative is available. Later, the court will assign a guardian and issue letters of guardianship. Depending on the court’s ruling, the AIP may require a guardian of the person, a guardian of the property, or a guardian for both the person and the property.
What are the Different Types of Guardianships?
There are several different arrangements of guardianship available depending on the need. The court may assign a guardian of the person, a guardian of property, or a guardian of the person and property.
The person’s guardian can make personal decisions for the ward as the court instructs. Some of these decisions include the right to contract, apply for government benefits, and the right to sue. Furthermore, the guardian can decide on the person’s property, medical care, and social life. The person’s guardian is responsible for filing the Initial Plan and Annual Plans with the court. These reports are mandatory under the law.
Next is the guardian of the property. In this arrangement, the guardian can decide the wards’ property. However, the property’s guardian has restrictions on what they can and cannot do. For instance, they do not have the authority to sell, transfer, mortgage, or donate any of the ward’s property without prior approval from the court. The judge will decide whether the proposed transactions are permissible.
After the guardianship letters have been finalized, the guardianship becomes legally binding. The guardian must be vigilant in protecting the ward’s assets. A guardian cannot mix their funds with the ward’s funds.
Another type of guardianship is a combination of the ones mentioned above. It is the guardianship of both the person and property. The guardian of the person and property is granted the power to make decisions regarding the ward’s personal and property rights as instructed by the court. It will be the responsibility of the guardian of the person and property to file all the necessary documents and reports for the court.
Lastly is the guardianship of a child or minor. The court, without adjudication of incapacity, can assign a parent, sibling, next of kin, or another person interested in the minor’s welfare as the guardian. The court’s main priority is to determine what is in the child’s best interest. Once the minor reaches a certain age, the guardianship will end.
Remember to keep in mind that guardianship of a minor, which is a legal relationship between the guardian and the ward, should not be confused with custody of the minor.
Who Can Serve as a Guardian and What is the Guardianship Agreement?
In most states, any competent adult who is a resident of that state can serve as a guardian. An out-of-state resident can also serve if they are directly related to the child.
However, the judge may assign a professional guardian after determining the facts of the case. Guardianship rules are uniform throughout the state, but some aspects may vary.
Moreover, since certain qualifications must be met to become a guardian, there are also restrictions on who can serve as a guardian. For instance, in Florida, the local laws prohibit the appointment of anyone as a guardian if they have been convicted of a felony, judicially determined to have committed abuse, abandonment, or neglect against a child, or have been found guilty, regardless of adjudication, in certain other offenses. Furthermore, anyone who cannot care for themselves due to illness or incompetence cannot apply as a guardian.
Besides meeting guardianship qualifications, the courts may require you to complete a background check. This may also include a credit history report for review. If the court determines that a criminal and credit investigation is mandatory, those results will be considered when the court assigns the guardian. You may certainly contact a legal expert to seek more knowledge on this.
Lastly, once the guardianship is finalized, additional steps must be completed for the guardianship. For instance, a training course has to be completed within a certain time frame, depending on your state regulations. Further training and certification can be required as instructed by the court. You must follow and adhere to the guidelines set for guardianship.
A guardianship agreement is a legal document that hands the legal responsibility to the guardian to care for and make decisions for the protected person as instructed by the court. Most states have a guardianship program that can be found on their state websites and includes forms that are needed to file for guardianship.
When Do I Need to Contact a Lawyer?
As stated earlier, guardianship is a legal process. It allows someone to be legally responsible for their care and lifestyle choices. However, it is a controlled process, and the court has specific instructions on each case. If you are seeking guardianship or need a guardianship agreement, do not hesitate to contact a local guardianship attorney to help you with the process.
