Have you ever heard the term “guardian” before but aren’t quite sure what it means? Guardianship might not be something that comes up often in day-to-day life, but it can be a crucial legal arrangement in the right circumstances. So, what exactly is guardianship? If you know of a vulnerable adult or a child that this term may apply to, keep reading for some helpful information about what guardianship is and how a Westborough guardianship lawyer can help.

What Exactly Is Guardianship?

Guardianship is a legal arrangement where the court appoints someone – an individual or organization – to care for and make decisions on behalf of someone else, typically a child or an adult who is unable to care for themselves. It’s designed to make sure that vulnerable people are looked after when they can’t manage on their own.

In the case of children, it’s important to draw the distinction between a caregiver and a guardian.

A caregiver is someone who can be named by a parent to make medical and educational decisions for the child. An example of this might be when a single parent lives in a mixed-generation household and relies on a grandparent or other non-parent family member to help with the upbringing. However, unlike a guardian, the parent retains rights on decision making and upbringing of the child. If a parent and a caregiver disagree with a decision about the child, the parent makes the final decision. Additionally, the parent can end the caregiver’s rights at any time.

A guardian is someone that is appointed by the court and receives sole right to make decisions relating to a child’s well-being and upbringing. In this case, the guardianship order suspends the parent’s rights.

Why Would a Guardianship Be Necessary?

So why would one need to seek out a guardianship arrangement? As we mentioned, this is typically utilized with children or vulnerable adults, but let’s explore what may lead to those circumstances.

Adult Is Incapacitated

A guardianship may be necessary for an adult who is unable to make decisions for themselves due to incapacitation caused by illness, injury, or mental health conditions. For example, an elderly individual suffering from advanced dementia may no longer have the cognitive ability to manage their finances, make healthcare decisions, or care for themselves.

Parent Is Unavailable or Unfit to Care for a Child

There are a lot of reasons why a family member may petition for a guardianship, or a parent may seek one while they are unable to care for their child. For example, if the parents are incarcerated or seeking in patient therapy services, they may want to establish a non-parent guardian to care for their child while they are unable.

In more extreme circumstances, a guardian may be necessary to care for a child when the parents are deemed to be unfit. In this case, both parents (if living/available) must be found unfit. If both parents are available and only one is found to be unfit, the court will instead consider whether it is appropriate to grant sole physical or legal custody to the other parent.

Common situations where a parent may be unfit to care for a child are if the child’s needs are not being met (such as excessive school absences without good cause), drug or alcohol addiction, or mental or physical health issues that prevent the parent from acting in the child’s best interest.

What Is the Process for Getting Guardianship?

In any circumstance, the guardianship process in Westborough can begin when a concerned individual files a petition with the court to request guardianship of a minor or incapacitated adult. Once the petition has been filed, a hearing date will be scheduled and the petitioner asking to be appointed guardian and the respondent (the parents of a child or the representative of an incapacitated adult) will need to appear before the judge.

If the petitioner and the respondents consent to the guardianship, the court will generally act quickly and issue a guardianship decree right away. This is especially true in the case of guardianship of a minor child. If the respondents contest the guardianship, then the legal process will play out to determine whether or not a guardian should be appointed.

When a guardianship is contested, the court will conduct hearings and collect other information to determine if the guardian is appropriate for the person to be cared for, their ability to provide appropriate care, and their financial stability. Interested parties in the case can contest the guardianship outright, the scope of the guardianship (if it should be limited, general, temporary, or permanent), and whether or not the petitioner should be the one assigned guardian if a guardianship is warranted.

In the event that a guardianship of a child is contested, the court considers the parents to be the best person to care for the child and will require “clear and convincing” standards of evidence that each living, available parent is unfit to have custody. Further, the burden of proof to prove that a parent is unfit rests with the petitioner filing for guardianship, not the parent themselves.

The “clear and convincing” standard of evidence is a high bar to clear and underscores why it is important to have an experienced guardianship attorney in your corner if you end up in a contested guardianship fight.

Are There Different Types of Guardianship?

Yes. Guardianship can vary depending on the situation. Guardianship can be temporary or permanent, general or limited. Let’s explore those differences a bit more below:

General Guardianship

General guardianship is where a guardian is appointed to care for and make decisions for someone who is unable to manage their own affairs. This may apply to a minor child whose parents are absent or unable to care for them or an incapacitated adult who is unable to make informed decisions due to physical or mental limitations. The guardian’s responsibilities typically include providing for the individual’s day-to-day care, managing their finances, making medical decisions, and ensuring their overall well-being. In the case of a minor, the guardian may oversee education, living arrangements, and personal matters. For incapacitated adults, the guardian may make decisions related to health care and living conditions. A guardianship agreement covers nearly all aspects of care except for financial management, which falls under conservatorship.

Limited Guardianship

Limited guardianship, on the other hand, is where a guardian is appointed to oversee specific aspects of a person’s life while the individual retains control over other areas. This type of guardianship is often used when a person is partially incapacitated and can still manage some responsibilities but needs assistance in certain areas, such as health care, personal safety, or financial decisions.

In limited guardianship, the guardian’s authority is restricted to specific duties defined by the court. Limited guardianship aims to balance protecting the individual’s welfare with preserving their autonomy. It can be modified or terminated if the individual’s capacity changes.

Temporary Guardianship

A temporary guardianship can be either limited or general but is generally granted on an emergency basis when a judge believes that a guardian is needed to stop immediate, serious harm to a child, and, when there is no one else who can be responsible for and care for the child. Temporary guardianship is granted for a term of no more than 90 days after a less formal hearing. If the guardianship warrants an extension to a more permanent arrangement, the court may issue a return date for an evidentiary hearing where a more rigorous assessment of the guardianship appointment will be made.

Does Guardianship Have an End Date?

Guardianships can and do end for a variety of reasons. Here are some of the most common scenarios:

• Court Intervention: The court may remove a guardian, either at the request of another adult or on its own initiative, if it’s in the best interest of the child or incapacitated adult.
• Incapacitated Adult Guardianship: This ends when either the adult or the guardian dies or when new information shows the adult is no longer incapacitated.
• Minor Child Guardianship: This ends when the child turns 18 or when the guardian passes away.
• Request to Not Be Guardian: A guardian can request to be relieved of their duties and replaced if they are unable or unwilling to continue providing care.

The court regularly reviews the arrangement to ensure the best interests of the individual are being met.

Speak with an Experienced Westborough Guardianship Attorney

If you’re considering guardianship for a loved one in Westborough, it’s important to consult with a family law attorney experienced with guardianship. A knowledgeable attorney can guide you through the legal process, help you understand your rights and responsibilities, and ensure the best interests of the individual in need of care are prioritized. Need help today? Feel free to contact us for immediate assistance.