Getting to Know Legal Guardianship
Legal guardianship is the court-approved legal authority for one person to act on behalf of another person who is unable, for any reason, to care for herself (or himself) or her (or his) belongings. The purpose of legal guardianship is to establish a form of legal protection for those too ill, elderly, developmentally challenged, special needs, intoxicated, immature, or unreliable to properly care for themselves and their belongings as a result of the above-mentioned conditions. Legal guardianship is required when an adult is unable to care for themselves, their children, and/or their belongings to the extent that either they may harm themselves, their children, and/or their belongings or prevent others from properly caring for them or it.
Legal guardianship is not the same as custody or power of attorney. While custody generally relates to children and is ordered by the Court until a child turns eighteen years old, custody is not a form of legal guardianship . A guardian may stand in the shoes of a parent and has the legal authority to make decisions on behalf of the child and take action in lieu of the child’s parent(s), which is empowered by a legal guardianship for arriving at an outcome beneficial for the company. A guardian can also make medical and/or financial decisions on behalf of the adult ward, without need for the ward’s consent.
Although a power of attorney does pertain to adults, it only provides another person with the authority to make medical and/or financial decisions on behalf of the legally incompetent adult (ward), which must be specifically enumerated in the power of attorney and may not include those decisions in which a legal guardianship is intended to provide. A Guardianship creates a relationship similar to that of parent and child, while a Power of Attorney only provides the authority to make designated decisions over another, without the parental aspect of a guardianship.
Different Kinds of Legal Guardianship
There are two main types of legal guardianship: guardianship of a minor and guardianship of an adult. If you are seeking legal guardianship of a minor, you will often be required to identify the custody status of the minor before pursuing legal guardianship.
You may ask the court for legal guardianship of the minor if:
The child is not currently under the guardianship of the court or in the care of an authorized social service agency under the law.
The minor’s biological parents are no longer in the child’s home because they voluntarily relinquished their child or terminated their parental rights, were found incompetent to act in their child’s and refused to do so, or failed to provide for their child’s care, support and education.
If you seek legal guardianship of an adult, you will be limited to seeking guardianship of the person, estate or both. Guardianship of the person gives you a say in the individual’s physical well-being and care. Guardianship of the estate allows you to manage the financial and property assets of the individual.
Before effectively managing or caring for these individuals, you must show proof that the adult:
Has a legal disability because they were "adjudicated" as incompetent to care for themselves and their estate,
Has a physical condition that impairs their ability to care for their physical needs, including major chronic pain or dementia,
Has a mental condition that impairs their ability to care for their physical needs, including mania or schizophrenia,
Or whether a person’s condition appears to be so bad that their physical and mental abilities will not improve.
In some cases, a person seeking a guardianship may cite an individual’s substance abuse, criminal history or sexual crimes as reasons to pursue guardianship.
Who can Become a Legal Guardian?
Eligibility for legal guardianship calls for that the proposed guardian be at least 18 years of age, a United States Citizen or resident and is a person of good moral character evaluated by the Court. Statutorily, there are certain individuals who are excluded from consideration to serve as guardian, including individuals who have substance abuse issues, are mentally incompetent, have fraud convictions or are otherwise disqualified pursuant to the California Rules of Court pertaining to guardianships. A read through the California Rules will be necessary to identify potential bars. Of note, certain adults over the age of 65 may be appointed as elder care managers, but these individuals are not appointed to overall care and welfare of the proposed ward.
The Process of Legal Guardianship
Begin your quest by filing a petition for legal guardianship. This paperwork should include full contact information for the minor you want to protect, including the minor’s school name and address, and the names and addresses of all his or her adult family members. The court will schedule an interview and hearing and send out notifications to the interested parties so they know about the petition request. You will also need to prepare and file other documents that vary by state, such as a consent form from the minor’s parents, a "notice of rights" form (to inform everyone filing against the petition of their rights and right to appear in court) and a "bond," which is a monetary figure you must pay if someone challenges your petition. The next step is an interview with the Court Investigator. During this interview, the investigator will ask about the minor in question, the environment in which he lives, and why he needs a legal guardian. If everyone agrees, the investigator writes a report that states the case is suitable for appointment. If there are disagreements, the investigator will also detail this in his report. Attend the court hearing so you can ask for confirmation of the legal guardianship appointment. At this time, the judge will hear and review evidence then issue his ruling. If the judge decides the case is suitable, he will appoint legal guardianship. You will receive an order of appointment that allows you to act on behalf of the minor. This may take place at the same hearing, but the court may also require another hearing about your suitability to become guardian. They may ask you to explain any criminal convictions, financial problems, limitations or other personal issues that could affect your ability to act in the best interest of the minor. Keep in mind that the court understands that circumstances can change, so it can modify the appointment. File a petition whenever there are changes to address, income or other issues that may affect the performance of your duties.
Common Hindrances and Remedies
Navigating the waters of legal guardianship in Arizona isn’t always smooth sailing. There are unique challenges that can prevent individuals from successfully obtaining legal guardianship over a loved one. One of the most common challenges is filing in the wrong court. Every state has its own process for determining guardianship. In Arizona, you must file in the Probate Division of the Superior Court in the county where your loved one lives. If you file in the wrong court, your case will be dismissed and you will be required to start anew. Once the initial hurdle of filing in the correct court has been overcome, the next challenge for many individuals involves an objection from the family member that never wanted to see their loved one in a guardianship. While their objection may feel very personal to you and to a certain extent it probably is, you must remember that they are not objecting to you personally. Rather, they are objecting to the proposed decision of the judge as to whether or not the person who needs a guardian will have a guardian at all . These objections are filed for a number of reasons including conflicting loyalties to other family members, differing opinions on who is best to serve as a guardian, or the concern with regard to how assets are being handled. While these objections can be frustrating for the petitioner, they can be overcome. The best way to overcome an objection in family cases is through mediation. Conflicting family members can sit down with a mediator to discuss facts about guardianship. Once the objections are discussed, the mediator will present possible resolutions to the parties and allow them to make their own decisions about how to proceed with the case. Some common objections raised at the initial hearing include: The first two objections are quite common, but can be difficult to overcome if the other family member is insistent upon being involved. However, if there is no objection, or if the objection is easily overcome, the case will proceed to hearing and final order will be issued. The general rule of thumb to remember is that when you are communicating with your family members, be courteous and respectful. Show them you are following the law and acting in your loved one’s best interest.
Financial Aspects of Legal Guardianship; Time Required
The total cost for any legal guardianship will depend upon your family situation. In a typical case, the following costs should be expected. Volunteer attorney – $700 to $1,000 Private attorney – $3,000 to $10,000 Guardian ad Litem – $500 to $1,000 Filing Fees – $175 Medi-Cal – if you are on Medi-Cal when your petition is granted, you will be charged 85% of the guardian’s income as long as you have earned income. We have streamlined the juvenile dependency process and all petitions are completed within 90 days of your filing the application. However, since dependency cases are consolidated in our court and all petitions must be heard within 60 days, and because a judge or referee may make an order for assessment or a risk assessment which can take 30 to 40 days, the total time from your petition filing to the Guardianship can take 90 days up to six months.
The Last Steps and Continuing Guardianship
Once a legal guardianship is granted, the appointed guardian needs to take steps to fully assume his/her role as a guardian. This includes making any necessary notifications. A guardian must notify the protected person’s school, if applicable, about the guardianship order so that parental rights can be established and special education and services can continue or be put in place in a timely manner. For disabled persons receiving government benefits, the guardian should notify the Social Security Administration (SSA) of his/her appointment as guardian to continue to receive benefits. Any financial benefits received by the protected person, such as Social Security Government Benefits need to be deposited into separate bank accounts set up for the protected person. Also, to prevent any negative consequences to the protected person’s government benefits, the guardian must consider "transfer penalties." Any money or property transferred to the guardian from the protected person may have its own period before being transferred which can negatively affect the protected person’s government benefits.
The guardian also has continued responsibilities. The guardian will have to file reports with the Office of Dispute Resolution (ODR) every year if the protected person is receiving government benefits. In addition, the guardian will have to report any money or assets belonging to the protected person if it is over $1000, as well as any money received on behalf of the protected person. The guardian must also obtain permission from the ODR before he/she makes any major purchases or sells the protected person’s assets. A guardian has the right to seek reimbursement from the protected person’s estate for all reasonable and necessary expenses incurred while exercising the guardian’s duties. A guardian is also authorized to execute any document under seal which may be necessary to exercise his/her powers. Finally, a guardian has the right to petition the court for an order to change the status of the guardianship or to terminate the appointment.
Support Resources
In addition to assistance from legal professionals, prospective guardians can explore a variety of resources to support them through the legal process. Websites like the National Guardianship Association provide potential information on this legal process in a variety of states. They also provide links to guardianship associations in each state, which include details about local regulatory agency oversight, such as home study information and reporting requirements. Of course, there are other non-profit organizations that provide support for people with disabilities , which assist with family resources and medical information. Such organizations may maintain a list of local services and associations for the benefit of potential guardians. In some cases, public entities such as United Cerebral Palsy maintain online resource directories for those with disabilities and their families. Of course, there are also organizations that provide support for other disabilities. These associations may assist with everything from access to insurance benefits to educating the public on these conditions.