What Does Legal Guardianship Mean?
Legal Guardianship is a court order that allows an adult to make legal decisions on behalf of another person who is unable to do so due to incapacity. This person is commonly referred to as the "ward." Guardianship may apply to children as well as to adults. In the case of a child, the legal guardian has the same authority as a parent. If the ward of the guardianship is an adult, the legal guardian can make health and financial decisions for the ward , including managing the ward’s property and finances. A guardian may also have a legal obligation to care for the personal needs of the ward as necessary. Certain actions, known as "delegable acts" may be specifically authorized within the legal guardianship, such as the ability to consent to medical treatment.
Why would someone need legal guardianship? A number of different life circumstances may create a need for legal guardianship. Among those are:
How Do You Get Legal Guardianship?
There are several steps that are typically involved in the process to obtain legal guardianship. First, a petitioner must file a petition for guardianship with the appropriate probate court. These petitions can often be found with the court or downloaded online. The forms are generally easy to fill out, but they must be completed with accuracy and a complete level of detail for a judge to grant them.
In most cases, the application requires the signatures of two or more disinterested parties. "Disinterested" implies they have nothing to gain from the guardianship. By contrast, those who stand to inherit from the estate may not be a good fit.
With most petitions, interested parties will be interviewed by the court, including family and friends who may also be candidates for guardianship. At that time, a petition will be heard by a judge. In some cases, after an appointed court investigator conducts their own home visit and interviews, the matter must go to trial.
Judge’s Orders
The court will decide based on the information presented before them whether the person applying is fit to become the guardian. This is true whether the petition is for an adult or minor child. If the judge decides to appoint a guardian, they will issue a court order. This will become the legal authority to act on behalf of the person under guardianship. An appointed guardian can be paid for their services in certain cases, as led by the judge.
Annual Reports
Once appointed the guardian is required to submit annual reports to the court. These will provide a record of how the guardian is managing the affairs of the party under guardianship. This is how they are held accountable for their actions and can help to keep the judge up-to-date on the needs of the subject of guardianship.
How Long Does It Take to Get Guardianship
The time it takes to get the guardianship process started and completed will vary in each case and for each client. A number of factors influence the timing for any particular case, including the time it takes the court to process all filed documents, and the time it takes for the court to review the documents and then schedule the first court appearance. Each of these processes takes time, and the time can vary from court to court and even from day to day.
In our experience, the earliest a client could appear in court for the initial hearing, provided court staff have adequate time to complete a file review and the court is able to get the cases on the calendar, is about two months. In some counties, we have had clients appear before the court three weeks after filing their Petition, so it really does depend.
We advise clients to file guardianship cases as soon as possible, so they have the most options available to them as they help their family member. However, all the urgency in the world won’t make your hearing happen any sooner, so we recommend clients not make themselves crazy with anxiety about the timing. If you need to move faster than the court allows, we have measures we can take to address various emergency situations. We don’t recommend you file for guardianship until you know you will definitely go through with the case; although the court has the power to appoint a temporary guardianship, they will not routinely grant these unless there are special circumstances that warrant a temporary appointment.
Factors That Affect Guardianship Timelines
There are a handful of influential elements that can either add to or subtract from the total time it takes to secure legal guardianship of your prospective child. One such factor is the complexity of the specific case. Generally speaking, however, legal guardianship cases are quickly resolved. In larger cities, this is especially true. The family court schedules may be fully booked, but parents are able to receive their legal guardianship much more quickly than more complex adoption matters. In the event that the family courts in your city or county are particularly slow-moving, you can usually work with the court to get hearings scheduled on faster timelines.
The ease with which legal guardianship is acquired also depends on whether or not the biological parents are in agreement with the decision to move forward. Those who have come to foster care agencies prior to these adoptions and have undergone fingerprinting and background checks will benefit from the efficiency of the entire process. Those seeking legal guardianship should watch for and immediately respond to any requests for information and paperwork to keep the process moving along at a favorable pace.
When to Consider Guardianship: Can’t It Be Rushed?
Admittedly, there are certain proceedings which are so urgent that a guardianship proceeding must be commenced more expeditiously than normal. A good example is where an elderly person becomes incapacitated (and there is no durable power of attorney) and needs to be moved to a rehabilitation facility for post-hospital care. Normally, the standard Court rules would require six to eight weeks to complete the mental exam and associated filings necessary to establish guardianship. At a hearing, either in person or by telephone, the court has approved applications to expedite the process where time is of the essence. This might also apply to situations involving developmentally disabled children nearing age 18 where there exists a need to maximize government benefits such as special needs trusts , medicaid and social security. One of the problems in these instances is determining how much time will be required to finish the filing process after the mental exam. The Court must establish a hearing date within thirty days after the date of the examination. Since the examiner(s) in most cases are private practitioners that must schedule the time to perform one or more mental examinations, the potential exists that the examiner might not be available for another thirty days. In such instances, the court has allowed an alternate to conduct the examination, at least until the judge can make a decision. In any instance where expedited treatment is sought, it will be necessary to make a formal application to the court setting forth in detail the reasons why an expedited guardianship proceeding should be allowed.
Obstacles To Gaining Guardianship
The process of obtaining legal guardianship is not always straightforward, and applicants may encounter a number of challenges that can complicate or delay the process. A knowledgeable guardianship attorney can help you to overcome these issues and move forward with becoming a legal guardian.
Inadequate Documentation One of the primary, and most easily solved issues with guardianship applications is a lack of supporting paperwork, such as medical documents or income records. It is important to be familiar with the list of required documentation so your application will not be delayed by missing or incomplete records.
Improper filing of forms Another common issue is improper filing. If a petition is not filled out correctly, it can be rejected or a legal guardianship may be denied. This is another reason why it is helpful to work with a guardianship attorney who is familiar with the process and has experience working with the legal system.
Problems with the Home Study Interview If your spouse is applying to become a legal guardian, you may be interviewed by the judge or guardian ad litem. This is to ensure that both parents are on board with the new legal arrangement. People can sometimes run into problems with these interviews that can result in the process being delayed or even delayed. For example, spouses can fight over the issue of who is more responsible for a family member. If a couple has a troubled marriage, they could actually jeopardize the guardianship process. In these cases, it is critical to have a legal advocate who can help you to mitigate the damage so you aren’t hurt by your partner’s negativity. An attorney can help you to clarify issues and ensure that you are properly represented throughout the legal process.
Where To Seek Help and Resources
Although petitioning to become a guardian can be accomplished without the assistance of a lawyer, it is wise to work with a legal professional in instances where you do not fully understand the legal obligations that come with guardianship. A lawyer can also help you assemble and file the necessary paperwork. Most certainly, you will need the assistance of a lawyer if you need to challenge a court’s decision or bring a complicated guardianship issue before the court. An experienced family lawyer can walk you through every step of the guardianship process.
It is a good idea to spend some time researching different lawyers before you make a decision about who to hire. You should read lawyer profiles on websites and consult client testimonials. Consider how long the lawyer has been practicing family law, what services he or she offers (many lawyers have websites that outline each practice area in detail), and how much the lawyer may charge you for services. You can set up an interview with a lawyer to further discuss the case.
The American Bar Association has a section for legal referrals and approved attorney networks, but it may be difficult for someone dealing with a disability to navigate the website so hiring an individual to conduct research for a client may be more beneficial.
Takeaway and Final Thought
To wrap up our discussion on the guardianship process, let’s recap some of the key points about the guardianship timeline and the factors that can influence how long it takes. If you’re considering pursuing legal guardianship for someone, it’s wise to investigate the process well in advance. This means consulting with a family law attorney and beginning the legal process as early as possible. In general, you should expect to invest 6-8 months of your time at a minimum into guardianship proceedings. The exact amount of time you spend will depend on the court’s calendar, the number of hearings you will need to attend, and how well you and your attorney prepare paperwork and evidence. Involve your attorney as early in the process as possible to ensure you move through the guardianship timeframe with as few delays as possible . Having help from an experienced attorney can limit how long it takes to establish guardianship and keep your case moving forward. Even after the court appoints guardianship over an individual, the process isn’t over for you. Ongoing reporting and stewardship are two critical steps in protecting the person under your care. Many guardianship cases are able to close after a year or two when there’s no longer a need for ongoing review. In the end, guardianship is a serious responsibility requiring a great deal of time and commitment from the guardian and their legal team. For counsel to do their best work, make sure they are well-versed in the basic guardianship timeframe and expectations and work with them to get through the process efficiently and effectively.