Written by Jonathan Breeden
A guardianship can provide necessary care for an individual. However, it can also be oppressive when no longer needed. Termination of guardianship can be just as difficult as establishing one. It requires court hearings and involvement by legal professionals who will be fighting for competing sides.
Guardianship is where a person or other entity makes decisions on behalf of a person who cannot do so themselves (called a “ward”). A court process must establish this legal relationship. A guardian may manage an individual’s personal affairs, property, or both.
A guardianship relationship differs from a power of attorney (POA). A POA is a legal document that does not have to involve the court unless a problem or challenge arises.
An individual may select their own POA to help them manage their affairs. This differs from guardianship, where the court decides who handles matters. Guardianship does not offer the individual as much control over their affairs, so you should exhaust all options before considering one.
Establishing guardianship depends on the age and reason it is needed. If the ward is a minor, the court assumes a guardian is necessary, and a hearing will be set to choose a guardian. If the individual is an adult, the petitioner (person seeking a guardianship) must prove why the guardianship is necessary.
Proving the necessity of adult guardianship involves incompetency hearing with proof by medical records, doctors, or family members about the decision making of the ward. There must be evidence that the adult cannot make critical decisions for themselves and their property.
Guardianships often get established for minors under the age of 18. The court views children as incompetent when making certain decisions for themselves and their property. This is common when both of a child’s parents have died or terminated their parental rights.
A court may appoint a legal guardian responsible for the child’s personal welfare, decision-making, and to handle property and benefits. Although the appointment of a guardian is required, there is still a legal process to follow. The process involves an application for the appointment of a minor, the potential involvement of a guardian ad litem to represent the child, and a hearing. You could appeal minor guardianship decisions.
When the child turns 18, the guardianship is no longer needed and therefore terminated by the court. Absent extreme circumstances, the child is allowed to make decisions for themselves when they turn 18. If the guardianship needs to continue, it becomes an adult guardianship situation.
Both child and adult guardianship decisions can be appealed and overturned or rescinded. This requires court involvement and the appointment of a new guardian.
Some situations in which a guardianship decision could get overturned include:
Guardianship decisions may be challenged due to abuse of the ward or failure to do what is in the individual’s best interests. Either the ward or a third party may challenge the guardianship.
When the court receives a request for the removal of the guardian, a hearing will be held. At the hearing, the court considers the evidence presented and circumstances that establish whether the guardian is not carrying out their responsibilities. The court also determines if a new guardian is required or if the ward can control their own affairs. A new agreement will be drafted if a new guardian must be appointed.
If an individual is trying to terminate their guardianship, they must prove they are competent to handle their own affairs. This requires a competency hearing that involve presenting evidence from medical professionals, vocational experts, and others.
Both establishing and terminating guardianship can be complicated. It is a legal process that involves presenting evidence of what is in the best interests of the individual subject to the guardianship. If you have questions about your specific guardianship case needs, contact us at the Breeden Law Office for a consultation.
Our guardianship attorney has worked closely with clients with specific needs when approaching these complex situations. Call us today at (919) 661-4970 to find out how we can get you a positive outcome.