There are three groups of people who qualify for the protection of a guardianship: minor children whose parents cannot or are not their guardian, minor children with disabilities who will soon become adults, and adults with diminished capacity. In this post, we will discuss some of the details of each.
There are many reasons that a parent might be prevented from being the legal guardian of their own child. In those situations, it is possible for the court to appoint a person, over the age of 18, and acting in the best interest of the child, to be that child’s legal guardian.
A guardian can be selected and appointed in several ways:
Acceptance by the guardian of a testamentary appointment. The child’s parent can nominate the guardian in a will or in some other written document.
Appointment by the school board. A local school board may designate a responsible person (residing in the school district) as guardian of a child whose custodial parent resides outside of the state.
Appointment in a welfare proceeding in juvenile court. A juvenile court appoints a guardian to assist children in delinquency matters.
District Court appointment. A district court appoints a responsible adult other than the minor’s parent to make decisions on behalf and in the best interests of the minor child.
At SKV Legal, we generally deal with District Court appointments. However, we are able to assist and advise you in whatever circumstance you might find yourself.
CHILDREN WITH DISABILITIES
A parent or other interested person can obtain adult guardianship over a minor child with disabilities. However, in these cases, the child must be at least 17 years and 6 months old. If the court grants the guardianship, it does not become effective until the child’s 18th birthday. As part of the court proceedings, the court must determine that the child does not have the capacity to care for themselves in some way. If incapacity is determined, the court will appoint a guardian to provide the needed care.
Parents of the child are generally the preferred guardians in these situations. If the parents cannot fulfil this role for some reason, then adult siblings or other family members are next in line. If there is no family, then a close friend, and in the absence of a close friend, the court can appoint a professional guardian. We can help you select the most appropriate person to act as guardian and prepare for the particulars of this type of court proceedings.
ADULTS WITH DIMINISHED CAPACITY
A guardian can be appointed to an adult, but only if the would-be protected person is incapacitated. As with children with disabilities, that incapacity must be proved to a judge. Incapacity is measured by the person’s limitations in their ability to:
Receive and evaluate information, or
Make and communicate decisions, or
Provide for their own necessities (food, shelter, safety, etc.).
The person seeking to be guardian must prove that the protected person is incapacitated in one or more of these areas by clear and convincing evidence. We can help you decide whether or not your loved one is incapacity and would qualify as a protected person, and who is the best person to serve as their guardian.
Appointing a guardian is a serious decision. It will require judicial involvement and change the guardian and protected person’s lives forever. We understand the legal requirements as well as the personal and emotional ramifications, and are able to assist you with any of your concerns and answer any of your questions. Contact us today.