Guardianship is a legal relationship established by the court in which a person is given legal authority over another person when he or she is unable to make safe and sound decisions regarding his or her person, or property. Legal guardianships commonly involve minor children, but may also be ordered for developmentally disabled adults, or incapacitated adults. To explore this concept, consider the following guardianship definition.
Origin
1545-1555 Middle English guardian + ship
There are two main types of legal guardianship, both of which consist of appointing a person to act on behalf of another. These include guardianship of an estate, and guardianship of a person. Regardless of the type of guardianship, the individual is expected to act responsibly as caretaker. The arrangement of legal guardianship is meant to be temporary, as the goal is to restore the ward’s rights sometime in the future. On occasion, a guardianship can be permanent, remaining in effect until the ward is deceased, though the individual acting as guardian may be replaced by the court. This is often true if the guardianship is over an elderly or mentally ill individual.
Guardianship over an estate is ordered so that the appointed guardian can manage the assets of a minor child or other ward. In some cases, the guardian is appointed over an individual and his or her estate, in others, two separate guardians are appointed. An estate guardian is responsible to manage the ward’s assets, income, and property, and is often required to make periodic reports to the court. Such a guardian has no control over any other aspect of the ward’s life.
When an individual has guardianship of a minor child, he has the same duties and responsibilities the parents would have if they had custody of the child. The guardian is responsible for making all decisions regarding the health and wellness of the child, as well as his education. Guardians of a child may be relatives, family friends, or others who are suitable to raise the child. The basic responsibilities of such a guardian include:
While legal guardianship over a child may seem similar to an adoption, there are many differences. When a guardianship has been established, the biological parents often retain certain parental rights, such as keeping in contact with the child when it is reasonable. Additionally, guardianship is meant to be temporary, allowing the parents’ rights to be reinstated if the court deems them able to properly care for the child. An example of this is the placement of a child in foster care.
An adoption is final. Once the adoption is completed, the biological parents are not allowed to request that their parental rights and custody be reinstated. If it is a closed adoption, they cannot even have contact with the child. Adopted children become a legal part of their adoptive family, and these new parents have full and permanent parental rights.
In an emergency situation, the court may appoint someone to a temporary guardianship, initially bypassing the lengthy process of determining guardianship through traditional means. This may happen, for instance, when parents of a seriously ill child are refusing to allow the child to be treated, if a child is in immediate danger, or a mentally ill adult individual is a danger to himself or another person. A temporary emergency guardian is often appointed without a hearing only in cases where a responsible individual is needed immediately to act on behalf of the ward, and the guardian’s powers are limited.
Occasionally the court will instate a limited guardianship in which the appointed guardian has control only of certain aspects of the ward’s life. This may be done, for example, if a child’s parents are making a life-altering decision that is not in the best interests of the child. Such an action was taken in the 2013 case of Sarah Hershberger. In this case, 11-year old Sara, daughter of an Amish couple in Ohio, had been diagnosed with a form of cancer called T-cell lymphoblastic lymphoma. Sara began receiving chemotherapy treatments, but soon developed serious side effects. Sara’s parents, believing the treatment itself would cause her death, decided to end them.
The doctors believed that, without the chemotherapy, Sara had no chance of surviving the cancer, and so the hospital contacted the authorities, attempting to have Sara removed from her parents’ custody. When social services determined that Sarah’s parents were competent to care for her, the hospital took the case to the state’s appellate court, which sided with the hospital. A guardian was appointed to oversee and make decisions for Sarah’s medical care. Following the appointment of a guardian, the family fled the country to prevent their daughter from being forced into chemo. In Sarah’s case, the guardian was appointed solely for purposes of her medical condition, and was not authorized to make decisions regarding any other aspect of Sarah’s life.
Most commonly, a person is appointed a guardian by the court, based on the needs and what is in the ward’s best interest. The court considers the prospective guardian’s health, education, income, and relationship with the ward. In order to be considered to be appointed as a guardian, the individual must be over the age of 18, mentally competent, and must be physically able to perform the assigned duties. In a guardianship hearing, the judge will hear testimony from all involved in the case, including the prospective guardian. Anyone objecting to that individual being appointed guardian may present evidence at the hearing.
Most often the court appoints a family member or close friend of the ward as guardian. For example, an adult child may be appointed guardian over a mentally ill parent. Some states have public guardians, which means certain public agencies may be granted guardianship over a ward. Such a guardian is paid to act on behalf of the ward, the income being taken from the ward’s assets.
Certain types of professionals may act as guardian. This may be an attorney or other professional who takes on the guardianship when the ward’s family and friends are unable to provide him or his estate with proper care. Professional guardians are most often given guardianship over an individual’s estate, rather than his person.