Legal Guardianship of an Adult: Becoming a Guardian

  • February 1st, 2023

Disabled man in city park using wheelchair and smiling with guardian.Upon determining that an adult cannot make personal or financial decisions, a state court can appoint a guardian: a competent individual with authority to make choices for the adult, such as where they live and what kind of care they receive. While giving assistance and security, guardianship reduces an individual’s autonomy.

As this arrangement restricts a person’s rights, it is only appropriate when less restrictive methods, such as power of attorney or supported decision-making, are not available. Given the severe implications for individuals’ rights and freedoms, state courts oversee the appointment of a guardian and monitor how the guardian manages the protected person’s affairs.

Reasons for Guardianship

No particular diagnosis necessitates guardianship. People require a guardian when a condition or incident renders them unable to manage their personal or financial affairs.

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Some individuals with developmental or cognitive disabilities may lack the capacity to care for themselves independently. When children with severe disabilities reach adulthood, their parents often step in as guardians so they can continue helping their children.

The Court’s Role in Guardianship of an Adult

Unlike a power of attorney, which an individual can execute without judicial oversight, courts control guardianship. While people can appoint an agent by completing a power of attorney, the court must approve guardianship.

Some people include provisions in their wills that nominate a trusted person as a guardian for themselves or others for whom they are responsible. While the court gives weight to individuals’ requests, ultimately, it makes the final decision.

Becoming a Guardian

Those who wish to become guardians must follow certain steps.

  • Before petitioning the court for guardianship, they must inform the person over whom they wish to gain custody, as well as other family members and past guardians. Notice is critical.

    The proposed protected person is served a summons. It lets the individual know about the possible guardianship, allowing them to secure independent counsel and object.

    Due process also requires that the family members of the allegedly incapacitated adult know about the proceeding so they can contest it if they wish. Family members may think the person seeking control would not be a good fit for the role. Or, they may wish to serve as the guardian themselves.
  • The court must also receive a physician’s report describing the proposed protected person’s condition. The evaluation must be current. If too much time has elapsed since the doctor made the assessment, the court requires more information about the individual’s present state.
  • Once the court receives a petition, the court may assign a guardian ad litem (GAL) to advocate for the proposed protected person’s best interests during the judicial process. The GAL observes the situation and reports to the court.
     
  • The person seeking custody and the proposed ward attend a hearing. At the hearing, the judge hears testimony about the allegedly incapacitated person’s decision-making ability and the suitability of the proposed guardian.
Legal Representation

The legal community increasingly recognizes the importance of legal representation for alleged wards whose rights are at stake. Some jurisdictions, such as Oregon, provide court-appointed attorneys to allegedly incapacitated individuals without their own counsel.

Contested and Uncontested Proceedings

In some cases, the adult with an alleged incapacity and their family members agree to the guardianship. If the court finds that the adult is incapacitated and the proposed guardian is suitable, it will issue an order appointing the guardian.

If the court determines that the proposed protected person can function independently, the court dismisses the guardianship. When the court finds that the adult requires care and oversight, but the ward or others object to the guardian, the court decides which individual(s) will assume the role.

How the Court Chooses Guardians

When appointing the guardian, the judge will consider the incapacitated adult’s wishes and best interests, including the competence of the proposed guardian.

  • If the petitioner intends to take care of financial affairs, the court might consider their history with managing money.
  • A judge could disqualify a candidate because they abused or neglected someone in the past.
Co-Guardians and Successor Guardians

Two people can take on the role of co-guardians.

  • For example, the parents of a child with an intellectual disability may ask the court to appoint them both when their child reaches the age of majority. (In most states, the age of majority is 18.)
  • Siblings may serve as co-guardians for their parent with dementia.

One person can step in if the first guardian cannot fulfill their responsibilities. Parents of an adult child with a disability could include their older child, a grandparent, or another trusted person as a successor guardian on the petition.

Public and Corporate Guardians

When a family member, friend, or another trusted person does not take on the role of guardian for an incapacitated adult, a professional or public guardian may step in.

  • Corporate guardians are paid professionals. While corporate guardians can reduce family conflict, they may not give protected people as much care and oversight as trusted individuals.

    For instance, in Wisconsin, corporate guardians typically only visit their charges four times per year, whereas family members usually provide more consistent visits and assistance.
     
  • Many states have public guardians who assume responsibility when the adult cannot afford to pay a private professional. Public guardians can assume responsibility when those subject to guardianship experience financial exploitation, as in Illinois.
Find a Special Needs Attorney

An attorney can also help parents of adult children with special needs obtain guardianship. The lawyer can help secure a timely physician’s report, fulfill the notice requirement, draft and petition, and provide representation during hearings.

Speak to a special needs attorney near you to learn more about petitioning for guardianship of an adult child with a disability.


Last Modified: 02/01/2023
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