About Guardianship

Guardianship over minors and adults alike requires court action. In the United States, state courts determine who can and cannot be a guardian and what is and isn't in the best interest of a ward of the state. Often set up through last will and testaments, which are then honored by the courts, guardianships can also come into play when social services step in for the protection of a minor.

Definition

Guardianship is the legal responsibility one person has over another person or over another person's affairs. The most common use of the term is with regard to an adult-minor relationship. This typically involves the appointment of a guardian by the courts when the child's parent or parents become unable to provide care due to death or other incapacitating circumstances.

History

The legal concept of contemporary guardianship has its most recent roots in British common law, but extends back to before the birth of Christ. In Roman days, it was understood that parents had a natural and a legal responsibility to support their offspring and, further, that their extended family also must support its members. In feudal times, under English common law a child's father was deemed his legal guardian. Upon the death of the father, guardianship reverted to either the mother--if she held no property--or the feudal lord. The courts were deemed to have a vested interest over not only the individual, but also land he might inherit, and thus were responsible for appointing appropriate guardians.

Legal System

In the United States, guardians are appointed by state courts, and thus exact laws can vary from state to state. However, the underlying principles are similar throughout the states in that courts appoint guardians, often with consideration to a will in the event of a parent's death, to care for minors or in some cases incapable adults. The guardian is responsible for the full personal care of the ward and may also be responsible for her financial holdings. More often, the two responsibilities are divided so that there is a guardian of the individual and another of the property. Terminology can differ but a "conservator" is typically named by the courts to manage property.

Types

The most common type of guardianship is that of an adult over a minor. When a child is left without parents, the courts will look first to a last will and testament to fulfill the wishes of the parents. If there is no will, the court will decide placement of the minor with consideration to remaining family members and recommendations from social service professionals. Granting an adult full guardianship over a minor gives that individual the same rights of a parent to a child. A limited guardianship grants lesser power and may dictate that a separate individual be in charge of monetary or property disbursement decisions. Adults who are physically or mentally unable to care for themselves may also be placed under the care of a guardian--again through state courts. Appointing a guardian for an adult can be much more complicated because oftentimes the first step required is proving that an adult cannot care for himself. A guardian ad litem is a person granted temporary guardianship to serve a ward's best interests through a particular proceeding or time period.

Duration

Guardians can be appointed temporarily, as in the case of emergency guardianship or a guardian ad litem. With minors, guardians are more likely appointed for longer time periods, often until the minor reaches the age of majority. In the case of a guardian ad litem, a child may have need for the guardian only during a parent's divorce or parental competency hearing. Time frames for guardianship over an adult can be more in flux, dependent upon the nature of the adult's incapacitation.

Considerations

Prior to designating a guardian through a last will and testament, an individual should consider greatly the far-reaching ramifications. Not only must you decide with whom you would be most comfortable as a substitute parent, but you also have to decide whether that person should be the same one to administer the proceeds of your estate. Speaking to an attorney who specializes in the field is only one step. A more important step is to speak to the person you would like to be your child's guardian and discussing all the "what if" scenarios you can imagine.