How to Establish Guardianship in the US
Do you want to establish guardianship for a child or an adult in the US? There are different types of guardianship and process involved by state to know. In order to get started, keep reading in the following section for guardianship info now.
What is a guardianship?
It is obtaining legal authority to make decisions for a person, either a child or an adult. The appointed person by the court is the ‘guardian,’ who makes decisions on behalf of the ‘protected person,’ whom the guardianship is granted.
Why is it needed? For one, a guardian over the estate is needed if the protected person, in this case a child, inherited assets, which need protection until he/she’s an adult.
On the other hand, an adult may also need general guardianship if he/she is mentally incapacitated to take care of him/herself due to mental deficiency or mental illness. However, a special guardianship may be appropriate if the adult has a limited capacity to make all the decisions for his/her care.
Types of Guardianship
If you’re looking to establish guardianship in the USA, you should know the most common types that apply to a specific case. Check them out in the following.
Guardianship of the person
You’d be responsible for the maintenance, proper care and support of the protected person but will be involved only in making personal and medical decisions.
Guardianship over the estate
If you were a guardian of the estate, your main obligations will be to preserve, protect, manage and sell the estate for the protected person’s best interest. However, you’d only be responsible to make financial decisions.
(You can check out your legal responsibilities as a Guardian of the Estate Only in your state law.)
For example, in Nevada, these duties include but not limited to managing of all incomes, the sale of the person’s personal or real estate property, or annual filing of accountings with the court, selling stocks and/closing bank accounts, among other responsibilities, are outlined in the Nevada Revised Statutes.
What to know about guardian over the estate
You’ll not get absolute power in the control of the individual’s finances and assets by becoming the guardian over the estate. So before spending money or selling his/her property, you’ll need to get a court approval. Usually, the person’s money is also placed in a block account, so the court must approve before this account can be accessed.
Guardian of the person and estate
You will manage and take care of the protected person’s medical, financial and social decisions. Refer to all your duties and responsibilities in your state law.
Depending on where you are obtaining guardianship, the judge may grant a temporary guardianship, as an emergency order when you, as a petitioner, can show that the proposed ‘person’ is facing immediate and substantial risk of physical harm or financial loss and that he/she requires immediate medical attention. In addition, the temporary guardianship may also be given if the proposed person has a limited capacity in responding to any risk of harm or loss or in obtaining medical attention him/herself.
Differences by States
Depending on where you are, you should know the differences of guardianship by state.
For example, the petitioner or would-be guardian should file a court petition in the county where the proposed person resides. Then, the court will schedule a hearing in order to find out whether the petition is for the individual’s best interest.
However, you have the burden of proof because there are also different conditions to fulfill. Two things to show are - that you are qualified and that no other restrictive intervention form is available.
The court will conduct a hearing to consider your petition.
For additional proof, testimony/testimonies from social workers, psychologists and doctors may be needed.
Even if you are the proposed person or the petitioner, you will need a guardianship lawyer that can help to make sure your rights are protected.
The next thing you should know is the process of establishing guardianship.
At the very least, you should file a petition outlining your intentions of obtaining guardianship.
Depending on where you are, you should also pay a specific filing fee.
If filing a child’s guardianship petition, you should also file a letter of consent from his/her parents.
The court will then schedule interviews with you, the child’s parent, and potentially the child, along with another person or other people who may also have an interest.
The court may also order a home inspection and check your criminal background. Next, the court will decide based on the child’s best interest – in all matters involving children. Once the review has been done, the court will grant the petitioner the legal guardianship if they find that it’s for the best interest of the ward. You might also have to sign an oath to state that you’re accepting a guardian’s responsibilities.
Once the guardianship is approved, the judge will then give you an order to establish it. For complete details and downloadable forms, you should check your government’s website. Fill out those forms and file them in court.
Some duties and responsibilities, based on the type of guardianship, generally include but not limited to the following,
· Finding personal necessities and clothing for the protected person
· Allowing or refusing medical treatment
· Releasing confidential records
· Having the ward examined by his doctor annually and reporting the findings to the court
· Deciding on the correct living environment
· Consenting to or refusing the protected person’s travel plans
Once you’re appointed as guardian, your duties and responsibilities are forever unless terminated, modified or revoked.
But then, your position may also be temporary if you fail to fulfill your duties.
Seek Help from a Guardianship Lawyer to Ensure Your Rights Are Protected
If you want to apply for guardianship or if you think you can fulfill the duties and responsibilities of being a guardian, you can discuss your concerns with an experienced guardianship attorney. He/she knows the ins and outs of guardianship laws, which are complicated and confusing at the same time. So if you want to do things right from the very beginning, you should consider an expert lawyer to help you map out a sound plan.