What is Legal Guardianship?

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Guardianships are legal protections for both children and adults who cannot take care of their own affairs.  For example, the court can grant legal guardianship of a grandchild, niece or nephew in the event that the child’s parents are unable to perform their parental duties.  Another common situation is when a parent or grandparent develops dementia and can no longer take care of his or her financial matters.

Missouri defines a “guardian” as someone appointed by the court to have the care and custody of a minor or an incapacitated person.  An incapacitated person is someone who cannot take care of himself or herself alone.  The key indicator of incapacitation is when he or she can no longer make proper health and financial decisions on his or her own.  There are many reasons that a person can be considered incapacitated but some of the most common reasons are disease, injury, and old age.

What does this mean to you and your family?  There are legal tools that you can use to ensure that your family members are being taken care of through every stage of life.  Once a legal guardianship is granted by the court, the newly appointed guardian cares for, controls and protects that person as well as his or her assets.

Guardianship of a Child

Grandparents, aunts, and uncles are usually the ones seeking to establish legal guardianship when it comes to the care of minor children.  However, a guardian does not have to be related to the child.  It is usually close relatives that are in the best position to oversee the biological parents’ behavior, involvement, and interaction with their children.  It is typically these relatives that act as the first responders, stepping in to help the children.  For example, a grandparent might see their grandchild being raised in a home that is scarred by alcohol or drug addiction, an abusive relationship, or an otherwise unsafe condition.

Regardless of whether or not you are related to the child, people generally file for legal guardianship in the best interests of the child or children involved.  It is a tough decision to intervene in a parent/child relationship; however, biological parents are sometimes not able to care for their children, even if they desperately want to.  When a court grants a legal guardianship, it is not necessarily a permanent solution.  It is most useful in situations where there is hope that the biological parents can regain the ability to care for their children in the future.

Guardianship of a Child with Special Needs

A legal guardianship may be appropriate for a child with special needs when that child reaches the age of 18.  Making this special legal arrangement can ensure that someone who has the best interests of the child at heart plays a strong supporting role in helping that child make essential day-to-day decisions regarding his or her medical care, finances, and general well-being.

Guardianship of a Debilitated/Incapacitated Person

Legal guardianships are also sought to protect elderly people and those with diseases such as Parkinson’s disease and dementia who are not able to make major life decisions on their own.  Typically, family members initiate the guardianship proceedings.  A guardian can be a family member, friend, or someone else appointed by the court.  An example of a situation where someone might seek a legal guardianship is when an elderly person has reached the point where he or she is unable to care for him or herself. If this person has not already sought legal guidance to appoint someone to take on this role, a guardianship may be necessary to ensure that the person receives proper care.

Guiding You through the Guardianship Process

Pursuing a guardianship is a legal process. In order for a legal guardianship to be granted, it is typically necessary to go to court and offer some form of proof of incompetence. Anyone considering applying to become a guardian is advised to consult with an attorney prior to filing a petition.

It is important to note that a legal guardianship is not permanent. A biological mother or father can regain guardianship if he or she can prove that the condition that caused the court to grant guardianship to someone else no longer exists. However, keep in mind that the court shares the same concern for the child or adult for whom you seek to serve as guardian.

The guardianship process can be lengthy and includes collecting evidence to support your petition.  If you need help obtaining guardianship of a loved one, attorney Kathleen Shaul can help guide you through the process.  To discuss your specific situation or to learn more about how to obtain guardianship, contact us to arrange for a confidential consultation with an experienced guardianship attorney.

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