What is Legal Guardianship
Legal guardianship is a situation set forth under the law whereby a court awards a person or organization the authority to care for someone who is unable to tend for themselves. In many cases, this is a child who has lost one or both parents, and another individual, such as a grandparent, aunt or family friend, is willing to take on the responsibility of caring for that child. It could also be the case that a person has become disabled and requires assistance with their day-to-day needs. As a legal guardian, you bear full responsibility for the overall well-being of that individual through the provision of adequate shelter, food, education, and medical treatment and oversight.
Most often , decision-making in legal guardianship cases is centered around children below the age of 18. Legal guardianship allows for the appointment of a responsible party to act on behalf of an underage child until he or she is able to assume the capacity to care for themselves in these areas.
Legal guardianship differs from adoption in that the relationship is one of mere oversight. Children remain under the jurisdiction of the agency that appointed the guardian until he or she reaches adulthood, at which point they may petition for removal of the guardian. Adoption, by contrast, is a permanent and irrevocable arrangement that severs the relationship between child and biological parents.
Establishing a legal guardianship over a disabled adult is much like establishing a guardianship over a child, and the rights and responsibilities of both processes are comparable. However, legal guardianship for an incapacitated adult is substantially more difficult to obtain, and the burden of proof is often greater to show a definite need for legal guardianship.
Different Types of Legal Guardianship
Guardianship of minors and guardianship of adults differ significantly from each other. Several forms of legal guardianship exist depending on the person involved.
Guardianship of minors
When both parents are dead, have abandoned the minor, or the rights to a minor have been severed, legal guardianship may be an option. Such legal guardianship exists in most states until the minor reaches the age of majority.
Guardianship of adults
Adults can become legally incapacitated as well. Examples of such situations are persons with dementia, severely autistic adults, or those involved in severe accidents resulting in comas.
Unlike guardianship of minors, guardianship of an adult does not necessarily relieve the person over 18 years of age of all of their legal rights. Limited guardianships exist wherein the incapacitated adult still holds some legal rights while other legal rights are taken away. Under these circumstances, a legal guardian would be appointed to make decisions on behalf of the person over 18.
If guardianship is needed for the person over 18, further options do exist to make such a guardianship more restrictive. Although confined to the person over 18, such situations may involve taking away the ability of the person over 18 to make decisions regarding finances, medical care, or even consents to do specific things such as getting married.
Legal guardianship may be inappropriate if someone else has already made decisions for the incapacitated person over 18. For example, when the person over 18 is hospitalized and released under a power of attorney, the injured party may have not been deemed incompetent to make decisions.
The Necessity of a Lawyer for Legal Guardianship
When seeking legal guardianship, hiring a lawyer is essential. The process is not only time-consuming, but a number of aspects can cause tremendous headache if you’re unfamiliar with the rules and requirements. If you’re not experienced in guardianship cases, there are a number of amendments, deadlines, filing fees, document submissions and other requirements that could derail the case, adding stress and expenses to the process.
In addition, even access to your loved one with diminished capacity can be difficult. Relatives, spouses, and others may try to keep access restricted, making the guardianship hearings even more important to secure your rights, and those of your loved one. An attorney can advise you of your rights from the start of the process, and help you determine the type of guardianship you may need:
The type of guardianship that is needed may also change. There are a number of factors at play, both for the well-being of your loved one and in financial matters. A good attorney can help you understand the best options in all areas.
Your lawyer is responsible for preparing and filing your petition with the court, and guiding you through all the scheduling and paperwork requirements that can otherwise lead to missing deadlines or filing the wrong documents. They will gather the appropriate medical information and prepare them for filing at court. They’ll also help you gather additional supporting documentation and submit to the judge a brief or memorandum explaining the necessary facts and legal arguments.
Your lawyer may also be able to mediate with any other parties who could challenge or interfere with your right to guardianship. This can hopefully prevent a delay or a more lengthy and costly hearing if parties with other interests can reach amends with your lawyer. If you end up in the courtroom, your attorney will represent you, arguing your side and convincing the judge of your good faith actions, and your loved one’s need for protection. After securing your guardianship, you may need other assistance with matters like benefits approval or management or other estate planning matters. They can be there with you for any additional help you may need.
Finally, no matter where your legal guardianship may go, an attorney can help ensure your loved one has their rights at the forefront. Whether your loved one is able to articulate their well-being and wants as an adult, a lawyer will fight to ensure they have a voice in their own finances and care.
Steps in Creating Legal Guardianship
Establishing legal guardianship over a child or an adult is a process that has several steps, each involving a different aspect of the law and its application. This process generally involves filing a petition, gathering supporting documents, attending court hearings, and a final determination of guardianship by the court. Each of these steps, as well as the role a lawyer plays in the process, will be discussed in further detail below.
If you seek to be appointed guardian for a minor child (under age 18), you will need to prepare a petition for the court. This petition can often times be filed with the court by a lawyer representing you, but court rules in many counties allow for a person to file their own petition. Court Assistance Staff are available in many counties to help.
The petition is a request to the court to appoint you as guardian. It must contain the full name of the person you wish to become guardian for, as well as their age, date and county of birth, and current address. The petition must be signed by the person you seek to become guardian for if this person is over age 14. You will also need to provide the court with a statement of your relationship to this person, your interest in becoming their guardian, and the reason why you are seeking to be appointed guardian.
Once your petition is filed with the court, certain documents supporting your petition will need to be filed. These documents include a Citation, which is a document used by the court to notify the person/people who would be appointed as Kinship Guardian(s) that you are asking to be named as Guardian for another person. You will also need to prepare an Order Appointing Kinship Guardian, which is your request for the court to appoint the named Guardian(s).
It is important to note that you may also need to obtain consent to appointment and waiver of notice from the person you are seeking to appoint as Guardian, as well as from the person you are seeking to become Guardian for.
Once you have filed all your documents and provided notice of the hearing to the appropriate parties, you must attend a hearing before a judge, at which time the judge is to hear any objections to the appointment of a Guardian.
Once the Order Appointing Kinship Guardian is approved by the court, you will need to submit the Order, along with an Acceptance of Appointment by Guardian and bond signed by the Guardian, to the judge for their signature.
The process for establishing a legal guardianship varies for a minor and for an adult in need of a guardian. For a minor in need of a Guardian, it is common for a judge to make the appointment at the same time as the first hearing date, so long as no other parties contest the guardianship. For an adult, the process can take longer. Once the Petition, Order, and Acceptance are submitted to the court, the process may take approximately 30 days for a judge to sign the Order, but it may take longer.
Typically, once a legal guardianship is established, a lawyer does not take on the responsibility of managing the day-to-day care of the ward. However, a lawyer is often called upon to assist with matters that are beyond the scope of the Guardian’s expertise, such as seeking pre-approval to pursue a medical procedure for their ward. A Guardian may also choose to seek legal advice for potential litigation that could affect the well-being of her ward.
Finding the Right Lawyer for Legal Guardianship
For those seeking legal guardianship, the process can be overwhelming. Once there is an understanding of the scope of guardianship, it is time to hire a lawyer (or not). So, how does one go about selecting the right legal guardianship attorney to handle the case?
Examine Competence
At the center of every legal guardianship case is the competency of the individual(s) who are involved. An adult who cannot make decisions on his or her own behalf due to mental impairment, physical incapacity, disability, or other reason may require the imposition of legal guardianship. An appointed legal guardian not only has the authority to make decisions but also is responsible for finding reputable caregivers and assessing their actions for the wellbeing of the ward. Therefore, when hiring an attorney to obtain guardianship, people should make sure that they have ability and experience in guardianship cases. An attorney that offers his/her keen understanding of the legal guardianship process can help to ensure that the individual’s case is handled with care. Notably, guardianship laws differ in each state. As such, it is imperative to retain an attorney who not only is adept at achieving legal guardianship, but who also understands jurisdictional laws and their application.
Review Experience
Similarly, legal guardianship is a serious matter . Therefore, when representing clients, an attorney must be able to navigate the various hurdles throughout the process. In turn, it is imperative to seek an attorney who has significant experience handling legal guardianship cases. Every legal guardianship case will be unique. As a result, having experience can prove invaluable to the success and resolution of a client’s case. Legal guardianship is a serious matter; therefore, being knowledgeable and experienced will better protect individuals who seek legal recourse.
Be Mindful of Reputation
People are often quick to enlist the services of the first legal guardianship attorney they see. However, legal guardianship is costly – both financially and personally. As such, those seeking legal guardianship should consider the reputation and reviews of an attorney. A good way to gauge the reputation of a legal guardianship attorney is to ask for client referrals. The most reliable means of evaluating the reputation of a legal guardianship attorney is to examine his/her reviews. Like other professional services, clients have the right to review their provider for quality and effectiveness. As such, examining the reviews of a legal guardianship attorney can help individuals to make a more informed decision. A top-rated legal guardianship attorney will have quality reviews from clients.
Legal Guardianship Pricing and Lawyer Costs
The costs associated with legal guardianship vary depending upon a variety of factors such as the type and degree of incapacity as well as the complexity of the guardianship proceedings. The approximate cost to make a petition for guardianship in the circuit court for Cook County is around $3,600.00. This is the cost for the filing fee, service and notice (publication cost), investigator report cost and attorney work. In some cases, it may be possible to waive the investigative report, which will reduce the costs. Also, this amount does not include ancillary and sundry fees. Additional costs will likely arise throughout the process. It is not uncommon for the total costs to approach $5,000.00 or more.
The parties to the guardianship, such as the alleged incapacitated person and the petitioner, are responsible for payment of the fees. If the Ward has an income, the fees are paid from that income, such as from Social Security. Should the Ward only have a trust, assets or is the income insufficient to pay for these fees, then the parties may ask the judge to consider alternatives. In many cases, if the Ward can not pay for the costs, the first petitioner will receive an award for her time as Petitioner’s attorney not to exceed $750.00. The Court may then find that the second nominee who is a lawyer or involved family member shall serve without compensation or at a nominal rate such as $50.00 per hour. If there are insufficient funds to pay for the attorneys, the parties can ask the judge to appoint the Public Guardian, which is a local government agency offering free legal assistance to the elderly and disabled to help look out for their best interests.
Legal Guardianship Difficulties
The appointment of a legal guardian is not always straightforward. Often, these proceedings involve complex issues that may lead to contested guardianships. At times, a family member may dispute the legal necessity of appointing a guardian over a person or a particular individual as the legal guardian. A contested guardianship hearing can be an overwhelming and difficult experience for the proposed guardian, but even more so for the incapacitated individual. While an individual with capacity is generally required to participate in a contested guardianship proceeding, the guardian also has a duty to inform the court of its importance.
Further, after a legal guardian has been appointed, it must comply with a number of ongoing legal requirements. For instance, in Pennsylvania, a legal guardian of an incapacitated person (unless specifically directed by the court otherwise) is required to file a verified statement concerning the well-being of the incapacitated person (a Form 17), and the financial status of the incapacitated person (a Form 16) at least once every two years. The forms require information and documentation about the medical and financial circumstances of the incapacitated person for the prior two year period. Forms not filed with the court can result in sanctions against the guardian.
Conclusion: Professional Assistance
While navigating the process of legal guardianship can be an arduous journey, the assistance of experienced legal professionals can make all the difference. Lawyers play a crucial role in ensuring that all forms are filled out correctly, timelines are adhered to, and legal requirements are completely understood by their clients. In addition to being legal guides throughout the process, lawyers can also clarify any potential disputes that may arise between parties and serve as a buffer .
If you are considering legal guardianship, you owe it to yourself—and your prospective ward—to consult with skilled legal counsel. The legal guardianship process, while often straightforward, is rife with legal pitfalls that can cause massive headaches in the near future if not properly addressed early on. A poorly established legal guardianship can hinge on the tiniest of errors, which can result in expensive litigation down the road.
In short, seeking legal advice at the very beginning of the legal guardianship process will make for a much more seamless experience later.