There are several reasons you may find yourself motivated to want to become a legal guardian. This could be to tend to the needs of a minor or incapacitated person, but of course, there’s a legal process involved in the mix that makes it less straightforward than you’d probably like.
Legal matters involving children are usually meant to be obtuse for the protection of the said children. Thankfully, you can retain legal counsel for family court proceedings as you aim to establish guardianship.
The focus here is more on what your child custody journey is likely to look like as you identify yourself as a proposed guardian. So, here’s what you want to look out for.
Summary of the Legal Guardianship Process
If you’re interested in joining the ranks of court-supervised caretakers for a permanent or temporary guardianship arrangement, your best bet is to review the requirements for your state. First, however, here’s a general summary of how most legal guardians do it.
First, you need to file the required court papers, after which you need to carry out a set of designated steps leading up to the date of the hearing. Guardianship laws don’t require a lawyer, but you probably should get one to save yourself from a massive headache.
What Would a Child’s Parents Do to Make Guardianship Potentially Viable?
Technically speaking, a child’s parents can nominate a legal guardian, making the whole process easier. However, the more likely scenario comes from, the more undesirable side of the spectrum.
In such cases, a parent may abandon a child, die, or be too incapacitated or unfit to take care of the child.
Think About Guardianship and What It May Mean for Your Current Situation
Sometimes, possibly the child has family members who may be interested in becoming a temporary or permanent guardian. In other cases, unrelated parties may wish to become someone’s legal guardian. In any case, it’s not something to be taken lightly or to be done because it sounds noble to become an appointed guardian.
This is a court order that comes with legal responsibilities such as reporting every so often. Additionally, you will likely be responsible for your ward’s assets and other financial affairs. You must be adequately able to handle your affairs while looking out for the best interest of someone who depends on you. Consider if you’re ready for that step.
Validate That You’re Eligible to Be a Legal Guardian
Since you’re trying to become a legal guardian, naturally, the system wants to ensure that you’re fit to take care of your potential ward. So, as you’d expect, a criminal record review occurs in guardianship cases.
Other considerations include presenting evidence that you have experience providing care or that you can manage the property. You can’t be legally incapacitated yourself, and you can’t have conflicts of interest with the ward. If the ward is heir to assets that can benefit a company you own, it’s likely going to be a no-go.
Note that if more than one guardian is interested, the choice may be based on what the ward wants, what the child’s parents agree with (where applicable), or what the court ultimately decides.
Validate that Legal Guardianship Is Possible for the Potential Ward
Imagine attempting to become the legal guardian and finding out that the said child isn’t eligible for any such arrangement.
Family law allows for the adoption of children so long as they are under 18 and not emancipated. However, appointing guardians for incapacitated persons who are adults is a different ball game. You may need legal aid organizations to help you prove the extent to which the person cannot live a functional life.
This may be because of medical treatment, the person’s daily routine, which cannot be maintained alone, an inability to meet basic needs, etc.
Bring an Attorney into the Mix
So, this one is entirely up to you though you’ve seen the information above encouraging you to do it. You likely have to deal with a family court judge, but legal help from a local attorney is optional.
You’ll spend more than you would without the attorney, but it’s worth it. Some judges don’t even entertain a guardianship hearing without an attorney. In addition, legal aid centers often provide free or low-cost alternatives if you can’t afford legal fees.
On the attorney matter, a court may appoint a guardian ad litem. The guardian ad litem is a lawyer meant to investigate the potential ward’s situation and report to the court whether a guardian is needed or not.
Fill out the Required Forms – Guardianship Petition, Duties of the Guardian, Notice of Hearing
So, you’ve probably heard of the filing fee you need to address, but you may be less familiar with the guardianship papers you need to fill out and submit before your hearing. In addition, depending on your location, there may be some other necessary forms, but typically, you’re dealing with the following:
- Guardianship petition – A form that captures personal details and has you indicate why guardianship of a child is needed. Additionally, you’re required to say whether you want to become a person’s guardian or a guardian of the estate. The former requires genuine care of the person, while the latter is more focused on asset management.
- Duties of the Guardian – This is exactly what it sounds like. It essentially outlines the functions you’re going to be legally required to carry out after you become the person’s guardian. However, it’s more of a declaration, which means you affix your signature to indicate that you agree to all said.
- Notice of Hearing – All interested parties get a copy of this document. This includes parents, other family members, social services departments, etc. The document indicates the justification behind the petition and when the hearing is expected.
After completing the required documentation, you take them to the clerk of courts. This is where you would pay the filing fee, which may be waived if an exemption is given based on your financial situation.
This is typically when you get your hearing date and when the notice can be provided to the relevant stakeholders. There are specific instructions on how the notice is to be given to ensure it’s valid, so you may want to pay attention to that.
Before the hearing happens, it would be in your best interest to start preparing yourself effectively. After all, you want to know that the judge approves your bid to establish guardianship.
You want to:
- ensure that you have all the required documents that prove you gave the notice required to everyone required
- Bring witnesses who can speak to the qualities that make you a suitable guardian or why the potential ward even needs you.
- travel with all the evidence you possibly can to paint the picture that the potential ward is undoubtedly worse off without you. Your attorney certainly comes in clutch here to help you sell the story effectively
During the hearing, answer questions directly, but ensure that while honest, your answers fit the picture you’re trying to paint. If the parents object or any other parties do, it’s a good idea to consider the root problem and respond in a way that provides a solution to the said problem.
Assuming all goes your way and the court appoints you as a legal guardian, you get a court order from the court that you file with the clerk of courts.
Once your filing is complete, you’re free to start your journey as a guardian. Remember, however, that this arrangement is conditional, and you must report to the court as stipulated.
Typically, these sessions are meant to get an idea of your ward’s health, financial interests, medical care, the presence of sufficient education, etc. These reviews become less frequent if the judge is satisfied with your handling of the ward’s affairs.