Guardianship is a legal process used to protect individuals who are unable to care for their own well-being due to infancy, incapacity or disability. A court will appoint a legal guardian to care for an individual, known as a ward, who is in need of special protection. Legal guardians have the legal authority to make decisions for their ward and represent their ward's personal and financial interests.
Guardianship Forms: 50-State ResourcesJustia provides a comprehensive 50-state survey on guardianships for both minors and adults, as well as guardianship forms and resources for each state.
Courts may appoint an adult guardian to care for a minor, who is not the child of the adult. Courts assign guardianships in a number of situations, including when parents have abandoned a minor, when a minor's parents have died, or when a minor's parents are incapable of providing proper care for the minor. A legal guardian may be a friend, family member, or other person the court feels will act in the minor's best interest. As the minor's legal guardian, an adult may be granted physical custody of the minor, or they may act as a financial guardian who exercises control over the minor's property. In limited cases, an adult may be appointed by the court to serve as a guardian ad litem.
You may express a preference for a legal guardian, or appoint a guardian in a will, but the court will always have the final say.
A court will establish a guardianship only if it is in the best interests of the child. This will involve factors such as stability in the child’s upbringing, the child’s stated preference, the ability of the proposed guardian to provide the child with proper care, the relationship between the parents and the proposed guardian, and any information regarding the moral character of the proposed guardian. Parents who foresee obstacles in appointing a certain person as a guardian might consider writing a letter of explanation to the court in support of their choice.
A hearing is usually required to review reports by a court investigator that are based on interviews with the child, the parents, and the prospective guardian, who must be an adult. You may want to name an alternate guardian in case your first choice is not approved. If the parents disagree on who should serve as a guardian, the judge will choose between their suggestions based on the child’s best interests.
More than one adult can serve as the guardians of a child simultaneously. Before taking this step, it is important to consider the possibility of disagreements between the guardians affecting your child’s future. In some cases, however, it may make sense if one adult is better able to provide the emotional support that a child needs, for example, while another is better at managing finances. Different children in the same family can have different guardians, which may be a good option if they have formed attachments to certain adults already.
Courts appoint guardians, or conservators, to protect the interests of elderly or incapacitated individuals. Because the creation of a guardianship may deprive an individual of some personal rights, certain steps must be taken before a guardian is appointed. An individual has a right to notice and representation by counsel before a guardianship proceeding. During the proceeding, the individual has the right to attend, confront witnesses and present evidence. If the court appoints a guardian, the guardian is encouraged to respect the ward's wishes and give the ward as much autonomy as possible. As above, guardianship of an elderly or incapacitated individual may entail guardianship of the person, guardianship of the estate, or both.
Last reviewed October 2023
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