“Our Guardian Angels are our most faithful friends, because they are with us day and night, always and everywhere. We ought often to invoke them.” ~ John Vianney
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Practice AreasGuardianship
A guardianship proceeding is a Court proceeding whereby the Court makes a determination on whether an individual is in need of a guardian, and if a guardian is deemed necessary, the Court will then make a determination as to who the guardian should be. There are two classes of individuals who may need a guardianship: (1) a minor (defined as an unemancipated individual who has not reached eighteen years of age), and (2) an incapacitated person (defined as an individual, for reasons other than being a minor, who is unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance).
Guardianship of a Minor
A parent may appoint a guardian for their minor child by Will or other signed writing. The appointment of a guardian becomes effective upon the appointing parent’s death, an adjudication that the parent is incapacitated, or a written determination by a physician who has examined the parent that the parent is no longer able to care for the child. The duties and responsibilities of a guardian of a minor are the same as the duties and responsibilities of a parent regarding the minor’s support, care, education, health and welfare. The guardian shall act in the minor’s best interest and exercise reasonable care, diligence and prudence. Guardianship of a minor terminates upon the minor attaining eighteen years of age, the minor’s passing, the minor’s emancipation, the minor’s adoption, or as ordered by the Court.
We all hope that a guardianship for a minor is never necessary. However, in the event a guardianship is necessary, an appointment of guardian made in your estate plan allows you to have a say in who is going to raise and care for your child. Additionally, the nomination of a guardian by you, while you are healthy, will certainly streamlines the process and hopefully lead to less conflict among family members.
Guardianship of an Incapacitated Person
A parent may also appoint a guardian for an unmarried child who the parent believes is an incapacitated individual. Said appointment may be made by Will or other signed writing. The appointment of a guardian becomes effective upon the death of the appointing parent, adjudication of incapacity of the appointing parent, or a written determination by a physician that the appointing parent is no longer able to care for the incapacitated individual. The appointed guardian shall then file a petition with the Court to confirm the appointment. An individual who objects to said confirmation may file their objection with the Court.
In addition to a parent, any person interested in the welfare of another individual may petition the Court for a determination of whether the individual is incapacitated and for the appointment of a guardian, if necessary. This is referred to as a judicial appointment of guardian. In this type of proceeding there are a number of legal requirements that must be met prior to the determination of incapacity and the appointment of a guardian. As such, these proceedings can take months and can be very costly as attorneys and other professionals will need to be retained as part of the Court proceeding. In sum, if you believe an individual may need a guardianship, it is best to be proactive and include the appointment as part of your estate plan.
