Guardianship Basics

A guardian is a person appointed or chosen to take legal decisions on behalf of another who is unable to do on his or her own. Generally a guardian is appointed for a child or someone who is incapacitated due to disability or age.

A guardian can take decision such as:

• Consenting to medical treatment
• Providing for or arranging for the basic necessities such as food, shelter, personal items, etc.
• Enrolling in school or college
• Managing bank accounts and finances

Appointment of Guardians

The appointment of guardian rests solely on whether the court is persuaded that there is enough evidence to support the allegation of incapacity as defined by statute. How statutes define incapacity is critical in determining whether the proposed ward is in need of a guardian. A court will appoint a guardian for a minor if the minor does not have any family member who can take decisions on behalf of the minor.

Selection of a Guardian

The selection of a guardian is a very important. Courts generally prefer people with ties to the ward. Such people include:

• a parent or a close relative
• a spouse
• someone designated by the person before he or she became incapable

The chosen guardian must willing and able to perform the tasks in the best interest of the ward. The court will consider many factors while appointing a guardian including the character, physical capacity, history and background of the person. Limited education qualifications or financial resources cannot be a disqualifying factor.

Every state has its own guardianship laws that specify the duties and obligations of the guardians. Please check with your state laws.

Removal of a Guardian

The court can remove the guardian if it determines that guardianship is no longer necessary for the ward or if the guardian is negligent in discharging his duties. Using the ward’s resources for own benefit and disobeying court orders are examples of negligence. If the court removes the guardian for negligence or misconduct, a new guardian will be appointed.

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