Guardianships
A guardianship is a legal relationship between a competent adult (called the guardian) and a person who is unable to take care of his or her own affairs (called the ward). The two most common situations where guardianships are used are for children whose parents are absent and for those who have become mentally incapacitated for one reason or another.
In the child context, guardianships are necessary where the parents are deceased or absent, such as where a minor child is living with his or her grandparents. The relationship of guardian to ward can be established to allow, for example, the grandparents to make decisions for the child that the child cannot make because of his or her age.
The more common example is where an adult has become mentally incapacitated, such as an elderly parent. In those cases, the adult parent would go to court to become his or her parent's guardian in order to handle the parent's finances and affairs. In some cases, particularly where the parent and child can anticipate the incapacity, a power of attorney, which is a document prepared by a lawyer, given by the parent to the adult child can accomplish the same result and will be far less expensive and time-consuming.
The other example of guardianships involving adults is where an adult is suffering from a mental illness sufficient to render the person unable to handle his or her affairs.
Procedure. In most cases, a person interested in establishing a guardianship will hire a lawyer to file a petition for a hearing in the probate court in the proposed ward's county of residence. The proposed ward is usually entitled to legal representation at the hearing, and the court will appoint a lawyer if the incapacitated person cannot afford one.
At the hearing, the court attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. If a determination is made that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian.