Guardianship

A guardianship is a legal proceeding in which a court chooses a guardian for a person who can no longer make his or her own decisions.

All adults are considered competent and able to make their own decisions until a court declares that adult to be legally “incompetent”.  A legally “incompetent” person is often called a “ward”.

A guardian is someone who is chosen — either by a court or by being named in a legal document such as a will — to make decisions for the “ward”.

The types of decisions that a guardian might make include:

  • Giving consent to medical care or treatment;
  • Purchasing or arranging for purchase of such necessities as food, clothes, cars, household items, and other personal items;
  • Arranging for education; and
  • Managing finances and bank accounts.

When Guardians are Appointed

A guardianship requires that someone act on behalf of and protect the ward during the period of time when the ward is incapable of acting for him or herself. A court appoints a guardian when a potential ward is incapacitated and cannot make decisions for him or herself because of a mental or physical disability, disease, or addiction to alcohol or other drugs. When a minor has no adult or other family member to make certain decisions on the minor’s behalf until they reach the age of majority, a court can be asked to appoint a guardian for the minor.

Selection of a Guardian

The selection of a guardian is an extremely important task. People with ties to the ward are preferred as possible guardians by courts. These include:

  • A person designated by the ward — by legal document or otherwise — to handle his or her affairs, before the period of incapacity occurred;
  • A spouse
  • Parent(s) or another relative; or
  • A state employee or private person familiar with the ward and the incapacity at issue.

Whoever is chosen by the court must be willing and able to perform the duties at hand, and to represent the best interests of the ward. In selecting the guardian, the court considers the prospective guardian’s character, history, physical capacity, and other relevant attributes. A potential guardian’s limited education or financial resources are not disqualifying conditions in and of themselves.

Removal of a Guardian

A guardian may be removed if a court determines that the ward no longer needs the services of the guardian. Also, a guardian may be removed when he or she has not provided adequate care for the ward or when it is determined that the guardian is guilty of neglect. Neglect can include using the ward’s money or property for the guardian’s own benefit and not obeying court orders. Upon court order, the guardianwill be removed and a new guardian (or temporary guardian) will be substituted in place of the original guardian