The Rights and Responsibilities of a Legal Guardian

The legal definition of the term guardian is a person who is given the legal right to be responsible for making decisions and providing for the physical needs of another person who is unable to do so for themselves. This is not to be confused with the term "conservator" which is a title which refers to a person who makes financial decisions on behalf of someone else.

When is a Guardianship Needed?

In the case of a minor child, a guardianship may become necessary if the child's biological parents both die or are otherwise not available to care for the child. For adults, achieving guardianship can be more difficult. They must have a physical or mental problem which prevents them from caring for themselves or are in danger of harming themselves before guardianship can be considered.

What is the Process for Appointing a Guardian?

There are several steps involved in the process and it can vary depending on the county where the petitioner lives. The most typical process involves the person wishing to assume responsibility for another person to petition the probate court for this right. A petition should also include a medical afifdavit which proves the claims made by the petitioner.

After the petition is received, the court will arrange for an evaluation of the incapacitated person. This is usually done with a guardian ad litem, who will interview the incapacitated person if possible and inform them of their rights. The results of this evaluation will be reported back to the court.

A court trial will commence if the person disputes the validity of needing a guardianship. If the person does not object or is unable to communicate, a hearing will be held in which witnesses will need to agree with the assertions made by the petitioner that the individual is unable to care for themselves. The guardianship will be appointed after the trial and legal paperwork will be issued.

The Duties of a Guardian

The guardian has the right to decide where the incapacitated person lives, as well as deciding on health care, activities of daily living and socialization. The overall purpose of a guardian is to insure that the person lives in the least restrictive environment possible while having access to the highest quality of life.

This article is provided as information only and not intended as legal advice in any means or manner whatsoever, Attorney Andrew M. Lamkin provides focused legal counsel within the area of Special Needs Planning, and has provided this for informational purposes only.