A guardianship is a legal arrangement by which an individual known as a guardian is appointed to make decisions about care and living environment for the benefit of someone who is incapacitated. Incapacity is defined as a medically diagnosed condition that renders someone incapable of communicating or making decisions about their personal health, safety, or care. A guardianship can also be created to care for a minor child whose parents are unable to care for them.
Prerequisites for obtaining a guardianship
In general, there are two categories of guardianship proceedings: one for children and another for adults. If you are seeking guardianship of any kind, meaning you wish to be given the legal authority to make decisions for someone else, you must be at least 18 years of age. The court must also determine you are competent to serve as a guardian.
To become the guardian of a child:
- The child’s parents must be unable or unavailable to care for the child (e.g., they have abandoned the child, been found unfit, or have voluntarily agreed to the guardianship).
To become the guardian of an adult:
- The adult must be legally incapacitated, meaning there is a medical diagnosis documented in a clinical team report or medical certificate that establishes the person’s inability to make their own decisions or communicate regarding the same.
Documentation required
All of the following documents must be filed and properly served on all interested parties:
For guardianship of a child:
- Petition for Appointment of Guardian of a Minor
- Affidavit Disclosing Care and Custody
- Bond
- Proposed Order
- Motion to Appoint an Emergency/Temporary Guardian if there is an urgent need for a guardian
Of an adult:
- Petition for Appointment of Guardian for an Incapacitated Person
- Medical Certificate signed by a physician regarding the incapacity or Clinical Team Report (for intellectual disability)
- Bond
- Proposed Order
- Motion to Appoint an Emergency/Temporary Guardian if there is an urgent need for a guardian
Notices of the action and copies of the paperwork must be properly served on all interested parties, including the child’s parents, the child who is the subject of the guardianship or the incapacitated adult. A child over the age of 14 may be able to nominate a guardian or agree to a guardianship. The proposed guardian(s) will also need to complete a CARI form, which enables the court to complete a background check on the proposed guardian(s).
The role of an attorney
Your lawyer will assist in completing all forms and affidavits, acquiring the evidence needed to support the request for a guardianship, serving the interested parties as required by civil procedure rules, and conducting a hearing before the judge. The purpose of the hearing is to determine whether:
- The required notices have been provided to all interested parties
- A guardianship is necessary
- The guardianship will provide for the child’s or adult’s needs
- Any limitations on the guardianship
The interested parties may contest either the need for the guardianship, the scope of the guardianship or the appropriateness of the individual nominated as guardian. The attorney’s job is therefore to present evidence and arguments in your favor and against the positions taken by opposing counsel.
If the judge grants the guardianship, they must determine how narrow or broad this arrangement will be. In the case of adults it is fairly common for individuals to retain some decision-making ability, such as choosing their own meals or roommates in a group setting, even if they are not able to make medical or important life decisions independently.
Lastly, your lawyer will help you understand your need to comply with state law and the judge’s order concerning the guardianship. For example, the judge may require periodic reporting concerning the incapacitated person’s condition. There are also situations in which you must notify the court, for instance if you change your address or the incapacitated person regains the ability to care for themselves.
Helping Take Care of the Ones You Love
Guardianships exist to ensure that people who don’t have the capacity to make their own care decisions have someone who can make decisions on their behalf. Guardians play a very important role, and it’s important to have appropriate legal advice if you have a loved one in need of guardianship. Call our Family and Probate Team at 508.501.9132 for experienced attorneys who are ready to help.