Guardianship

Guardianship Lawyer

This legal process is used to protect individuals who are unable to care for their own well-being due to infancy, incapacity, or disability. Legal guardians have the legal authority to make decisions on behalf of their ward, (the individual in need of legal protection) and they will represent their ward’s personal and financial interests. The process of gaining or transferring guardianship can be long and complicated and could potentially involve a hearing. Let me help you navigate Guardianship so that your loved ones are protected and cared for no matter the situation.

Guardianship of a Minor

Courts may appoint an adult guardian to care for a minor, who is not the child of the adult. Courts assign guardianship in a number of situations such as; abandonment of a minor, parents of the minor have died, or when a parent(s) are incapable of providing proper care for a minor. A legal guardian can be a friend, family member, or another person that 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, meaning the minor would then stay with their new guardian or they may act as a financial guardian who exercises control over the minor’s property.

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Types of Minor Guardianship

Guardianship of the person (the minor) happens when an adult with legal custody of a minor has the responsibility to provide for the minor’s physical and personal needs. While the minor’s parents are legally required to continue financial support of the minor, the legal guardian must ensure that the minor receives food, shelter, clothing, education, and medical care. The legal guardian has the right to consent for the minor and make all decisions regarding the minor’s health and education. A legal guardian will maintain custody of the minor until the minor reaches the age of eighteen, or until a judge determines that the minor no longer needs a guardian.

Guardianship of the estate occurs when a minor has a substantial amount of money or property, the court may appoint a financial guardian, or guardian of the estate, to manage and protect the minor’s assets. A guardian of the estate must make all financial decisions for the minor until the minor reaches the legal age or until the minor’s assets are depleted.

Guardian ad litem is a court-appointed attorney that will represent a minor’s interests in a legal proceeding. Guardians ad litem are typically appointed in divorce cases, probate matters or in situations where the minor has been abused or neglected. See my information on “Attorney for Minor.” It is important to note that I hold a certified legal specialty as Guardian Ad Litem in the state of Missouri.

How to Establish a Guardianship of a Minor

A court will establish a guardianship only if it is in the best interests of the child. Courts will take several things into consideration such as; that there is stability within the child’s upbringing, what the child prefers, the ability for the guardian to provide proper care (nutrition, healthcare), the existing relationship with the proposed guardian and the minor’s parents, 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 over the age of 21. 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 can provide emotional support 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.

Guardianship for the Elderly/Incapacitated

Guardianship for an individual who is not a minor works very similarly to establishing guardianship for someone who is not able to make decisions for themselves based on their own care, their property, their money, or other people and assets in their care.

Tana Benner and her family