Guardianship means obtaining the legal authority to make decisions on behalf of another person. A “guardian” is the person appointed by the court to make decisions on behalf of another person. The person to whom guardianship is granted (the child or adult) is called the “protected person”. A legal guardian is a person who has the legal authority (and corresponding duty) to look after the personal and property interests of another person called a ward. [1] Guardians are generally used in four situations: guardianship for an older person with a disability (due to age or infirmity), guardianship for a minor, and guardianship for adults with developmental disabilities and adults deemed incapable. Guardians may be appointed in cases of adult guardianship (see also curatorship). For example, parents may take a guardianship measure to become guardians of a child with a developmental disability when the child is of legal age. A legal guardian and a person with power of attorney are similar in that they are legal authorities to make decisions about another person`s finances, property, or medical care. Litigants may be appointed by the court to represent the interests of people with mental illness or disability. For example, the Virginia Code requires the court to appoint a “discreet and competent attorney” or “other discreet and appropriate person” to serve as litigation guardian to protect the interests of a person with a disability.
[11] A medical power of attorney gives one person the legal authority to make decisions about another person`s medical care. These decisions may include types of treatments and medications, surgery, and end-of-life care. A legal guardian is a person appointed by the court responsible for caring for a child or an incapacitated adult. In most states, the process begins with determining whether the person with a disability is actually unable to work. There will often be an evidentiary hearing. [1] Only when incapacity is established does the next step take place: whether and to what extent a guardian is needed (e.g., a guardian may be needed for the person`s finances, but not for the person) and, if so, who the guardian should be. [2] A number of factors may be considered in determining whether guardianship is necessary, including whether there is a less restrictive alternative, such as the use of a pre-existing power of attorney and a health care representative. [3] In some cases, a guardianship dispute can become highly controversial and lead to a dispute between a parent and adult children, or between different siblings against each other, which is essentially a pre-nachlass dispute over the property of one of the parents. Even in such cases, the revocation of guardianship is often prosecuted.
The parent of a minor child is the child`s natural guardian. [8] Normally, parents have the right to make decisions for their children, and adults have the right to make decisions for themselves. Sometimes this is not possible and someone else has to step in to care for a child or adult. Guardians ad litem (LAGs) are not the same as “legal guardians” and are often appointed in the case of minor children, often to represent the interests of minor children. Guardians ad litem may be called Court-appointed special advocates (CASA) in some U.S. states. In upstate New York, they are known as Advocates for the Child (AFC). They are the voice of the child and can represent the child in court, with many judges respecting any recommendation from an LAG. LAGs can help when a child is removed from a hostile environment and custody is transferred to the appropriate family authority in the state or region, and in these cases they help protect the minor child. Guardianship is not the same as adoption. Here are some differences: Guardians ad litem are also appointed in cases where there is an allegation of child abuse, child neglect, PIN, juvenile delinquency or dependency. In such cases, the guardian is responsible for representing the best interests of the minor child, which may differ from the position of the State or State authority and the interests of the parents or guardian.
These guardians vary by jurisdiction and can be volunteer lawyers or lawyers. For example, Alliance volunteers trained in North Carolina are paired with lawyers to advocate for abused and neglected children. The program defines a child`s well-being as a safe and permanent home. [10] For example, if a sister and brother each want to be their mother`s guardian and the sister submits an affidavit challenging the brother`s qualifications, the affidavit would be admissible evidence in some jurisdictions, and the brother would not have the right to question the person who wrote it. In typical civil or criminal proceedings, the affidavit would normally be inadmissible as hearsay. For prospective guardians who are eligible to provide the child with a permanent home adequate in all respects, except the ability to assume full financial responsibility for the child`s care, States may provide a range of services and financial assistance. These supports include kinship navigation services, government-funded grants through Title IV-E, and government-funded grants. Information on government guardianship assistance payments that may be available to relatives is available in the government fact sheets on the Guardianship.org website.
Guardians have a duty to act in the best interests of their wards. They do not have a duty to respect the wishes of their wards.