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Who Can Be Appointed as a Guardian?

8 min read
Unbundled Legal Help

by Unbundled Legal Help

Guardianship is a valuable legal tool that allows a person to make important life decisions and care for another person when they cannot do it themselves. While guardianship may seem confusing, a guardian lawyer is best equipped to assist. We can connect you with an unbundled services guardian lawyer in your area today.

The criteria to become a guardian varies by state, but guardians must meet certain requirements. Guardians must be adults over 18 with no criminal record or incapacity. 

If you’re considering the legal guardianship process, you may have several questions regarding the appointment of a guardian. Continue reading for more information about guardians. When you’re ready to start the guardianship process, turn to an unbundled lawyer for guidance.

What Is a Guardianship?

A guardianship is a legal process appointing an individual, a guardian, to watch over and essentially decide for a person, the ward. A proposed ward may need a guardian depending on their situation and whether the individual is a minor or an adult.

What Does a Guardian Do?

A guardian is responsible for their ward and manages the ward’s personal, medical, and financial affairs. The guardian is often in charge of these activities:

  • Providing care and maintenance for the ward
  • Supplying the ward with necessities
  • Ensuring the ward’s needs are being met
  • Making medical decisions for the ward
  • Handling a ward’s education or training
  • Maintaining the ward’s assets and property
  • Managing the ward’s finances and accounts

A guardian’s tasks depend on their ward's age, health, and needs. Additionally, state law dictates what a guardian can and can’t do.

What a guardian ultimately may do depends on the ward’s age, health, needs, and state law. Some states use “guardianship” and “conservatorship” interchangeably. In other states, these terms indicate different types of legal relationships. For example, under some states’ laws, guardians are only entitled to handle personal and medical affairs, while a conservator handles the ward’s finances. 

If you’re unsure of how your state handles guardianship and what you’re able to do as a guardian, a guardianship attorney in your area can address your concerns and provide meaningful insight.

Types of Guardianship

Depending on your state’s laws, several types of guardianships are available. Generally, a person can become a guardian over a minor or an adult.

Guardianship for Minors

A guardian over a minor ward handles a child’s needs, including physical, medical, and educational. In some cases, the minor will live with the guardian to ensure all of their needs are met.

Why Does a Minor Need a Guardian?

A child often needs a guardian because their parents cannot care for them. There are several reasons a minor would need a guardian, including these situations:

  • Mental or physical incapacity
  • Serious illness
  • Incarceration
  • Death

If one or both parents cannot support or provide for their child, a guardian will likely need to step in and take over caring for the child.

In certain instances, parents may want their children to have a guardian exclusively to handle their finances. This scenario is common in estate planning when parents create a plan in case of their death. They may appoint guardians for their children, with one guardian exclusively responsible for the child’s inheritance or financial wellness.

Minor guardianship is unique. A guardian attorney in your state can provide invaluable assistance with minor guardianship.

Guardianship vs. Adoption

Many confuse guardianship of a minor with adoption, but the two are different. Guardianship creates a legal relationship between the guardian and the child, allowing the guardian to take some control over the child’s life and wellbeing. Guardianship does not interfere with a child's relationship with their parents.

But, adoption severs the child's relationship with their parent(s) because the adopted parent becomes the child’s parent under the law. 

Under certain circumstances, adoption may be the best option for a child. But in others, there’s no need to take the additional step of adopting a child, and guardianship can accomplish necessary goals and ensure a child is well maintained.

Guardianship for Adults

Guardianship isn’t only for minors. Under some circumstances, an adult may benefit significantly from having a guardian.

Why Does an Adult Need a Guardian?

Adults can usually take care of themselves and make their own decisions, but certain circumstances may make that impossible. If an adult becomes mentally or physically incapacitated or incompetent, they may require a guardian.

Once a minor turns 18, they are adults under the law. However, suppose a child has a mental incapacity. There, a court can appoint a parent or other individual to be this person’s guardian to continue having the ability to make decisions and care for them as they did when they were a minor.

Guardianship vs. Power of Attorney

It is common to confuse a guardian under guardianship and an agent under a power of attorney. While there are similarities, they are different processes.

In a guardianship, the judge appoints the guardian, granting them legal rights over the ward. Once selected, the guardian has the power to make critical decisions and care for the ward’s overall wellbeing.

There are many different powers of attorneys, some giving the agent only limited powers. For example, a healthcare power of attorney allows the agent to make decisions only regarding medical care. A general power of attorney might give the agent authority over healthcare, personal, and financial topics.

One of the most significant differences between the two is who is appointed. Under guardianship, the ward cannot choose their own guardian, whereas drafting a power of attorney lets the individual choose their agent. 

Who Can Be Appointed as Guardian?

Different states have their requirements for guardian eligibility, but generally, the guardian must satisfy these criteria:

  • The proposed guardian must be at least 18 years old
  • They can have no convictions for felonies or misdemeanors
  • They must be mentally capable and willing to take on the responsibility

The guardian need not be a relative or friend of the ward. The court can appoint anyone they feel meets the qualifications and is a suitable individual to serve as guardian. 

Who Cannot Be Appointed as a Guardian?

A judge would not consider specific individuals when deciding who to appoint as guardians, including these people:

  • Minors
  • Convicted felons
  • Anyone with mental incapacity or incompetency

Some states have additional requirements that would render a person unable to serve as a guardian, for example, those that have filed for bankruptcy within the last seven years.

Because the title of guardian is so important and guardians have power over the ward’s life and affairs, the court wants to help ensure they appoint the right kind of individual.

Can the Ward Choose Their Guardian?

Usually, the ward cannot choose their guardian.

Generally, an individual can petition the court to open a guardianship case and ask to be appointed guardian. However, it is always ultimately up to the judge who they believe would best fill the position of guardian for the ward.

It’s different for guardians appointed in a will. A person with children can choose who they’d like to take over as guardian for their children should they die. If the individual does pass away, a judge would likely appoint the guardian chosen in the will. 

Is It Necessary for Someone To Legally Become a Guardian?

A person need not become a legally appointed guardian to care for a minor or an adult. However, not having the legal backing limits a guardian.

For example, for a minor to live with someone, they need not be the child’s legal guardian. But if that person wants to take actions for the child, like make medical decisions or enroll them in school, they would likely not have the authority to do so, limiting their ability to care for the child thoroughly.

While becoming a guardian can seem daunting, having a judge legally appoint a guardian will always be more beneficial eventually.

When Does the Guardianship End?

When or if guardianship ends depends on the situation and the state’s guardianship laws.

For guardianship over minors, certain events can end the guardianship relationship, including these:

  • The child reaches 18 and is an adult
  • The court determines a guardianship is no longer necessary or beneficial
  • The guardian exclusively handled the child’s finances, but their services are no longer required
  • The child passes away

Adult guardianship typically has no end date and may continue until the ward passes away. The guardianship may end if the ward is no longer incapacitated or if the guardian resigns. 

Some states require guardians to follow up periodically. If they fail to do so by a specified date, the guardianship may terminate automatically, requiring the guardian to petition the court if they wish for reinstatement.

How Can a Lawyer Help with Guardianship?

The guardianship process can be challenging. It also requires an understanding of the law and necessary procedures. An experienced guardian lawyer can help open and manage your guardianship case to help get you the best outcome. 

A guardian attorney can give you peace of mind and help you feel confident about your case.

Let an Unbundled Lawyer Guide You Through the Guardianship Process

While guardian lawyers are beneficial, they’re also costly. An unbundled lawyer can provide the same high quality assistance at a fraction of the cost.

An unbundled lawyer has the identical education, skills, and experience as a traditional lawyer. However, instead of handling your entire case, an unbundled lawyer allows you to control certain parts of your case while they help with the most critical portions. 

An unbundled guardian lawyer is available to you when you need them most while helping avoid high legal fees.

Unbundled Legal Help can match you today with a guardian lawyer in your area. We have a network of attorneys ready to speak with you.

If you’re ready to take on your guardianship case, let Unbundled Legal Help provide the legal assistance you need.

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