Guardianships

     A guardian is a person who is appointed by a court to be responsible, as the court may direct, for the person or the property of an incapacitated individual or a minor. For the purposes of the guardianship statute, a minor is an individual who is less than eighteen years of age and who is not emancipated. An incapacitated person is an individual who: (1) cannot be located; (2) is unable to manage in whole or in part his or her property; and/or provide self-care because of insanity; mental illness, mental deficiency, physical illness, infirmity, habitual drunkenness, excessive use of drugs…; or (3) has a developmental disability.

     If not divorced, parents have the natural right to the custody of their minor children. The parents of the minor jointly, or the surviving parent if one is deceased, have the right to the custody of the minor. This authority may be limited by a dissolution decree or other legal proceeding. The surviving parent of a minor does not have the right to custody of the minor without a proceeding authorized by law, if the parent was not granted custody of the minor in a dissolution of marriage decree and the parent's visitation privileges have been suspended or are subject to supervision.

     As is evident by these preliminary remarks, a parent has limited rights as to the ability of making decisions on behalf of an incapacitated child. Their natural rights as parents cease when the child attains the age of eighteen or their rights are affected by a judicial decree. To act on behalf of an incapacitated child under these conditions requires a court order and the creation of a guardianship.

     A guardianship is a court process. The person seeking guardianship must file a petition with the court. Once a petition has been filed, notice is given to the incapacitated person, parents and any person or institution that has custody of the incapacitated party. Once notice is given, the court will conduct a hearing to determine the appropriateness of the petition.

     If at the conclusion of the hearing the court finds that it is necessary as the means of providing care and supervision for the physical person or property of the incapacitated person, a guardian is appointed. Once appointed, the guardian may act on behalf of the incapacitated party. A guardian's authority is represented by “Letters of Guardianship” which are issued by the Clerk of the Court pursuant to court order. These letters are evidence of the guardian's authority.

FORMS

GUARDIANSHIP WORKSHEET