Family Law FAQs

What is a Guardian?

A guardian generally has powers over an individual (guardianship of the person), his or her estate (guardianship of the estate) or both. The individual may be a minor or an incompetent adult. Both parents are considered natural guardians of their child, unless the parental rights have been terminated or the child does not reside with either of his or her parents. Parents are considered joint guardians of their child; if one parent dies, the other parent is the sole guardian. The parents of a child may also appoint a guardian in the event of their death. This appointment is generally made by will. If the parents of a minor child die without appointing a guardian, the court may appoint a guardian of the child’s person and estate.

If the court must appoint a guardian, there are certain criteria that must be considered. Some criteria taken into account, are the business knowledge, level of education, health, character, past conduct and background, religious beliefs (as compared to the ward's parents) and where the appointee resides. If a court appoints a guardian, that person acts as an agent of the court in handling the responsibilities for his or her ward.

What is a limited guardianship?

Some jurisdictions also have a limited guardianship. In this type of guardianship, the ward (minor, incompetent adult) may have the ability to handle some of his or her own responsibilities. In this case, a guardian may be appointed to handle the responsibilities that the ward cannot manage on his or her own for a specified amount of time.

When does a guardianship end?

A court appointed guardianship will often have a hearing after a specified amount of time, to review how the guardianship is going and determine the future of the guardianship. Commonly, a guardianship of a minor child ends when the child reaches the age of majority (age 18). Alternatively, when the ward is an incompetent adult the guardianship may end in a number of ways including a competency hearing, an end date in the original court appointment order or the death of the ward.

What is a guardian ad litem?

A guardian ad litem is not the same as a guardian. A guardian ad litem is appointed by the court for a special purpose. The appointment is usually when there is litigation occurring where the minor or incompetent adult’s rights are at issue and he or she needs an unbiased person looking out for his or her best interests. The role of the guardian ad litem will end as soon as the litigation (he or she was appointed for) has concluded. A guardian ad litem is fulfilling a job for which they are compensated. This job has certain responsibilities that must be satisfied, such as representing the child or incapacitated adult’s best interests, remaining fair, ethical and professional, completing his or her own investigation of the facts, keeping records up to date for the court, keeping qualifications/licensing up to date and avoiding any conflicts of interest.

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