Legal guardianship provides legal, personal and property duties and responsibilities to a person over a ward. The relationship is usually established by a last will and testament or court order.
Parents are natural guardians of their minor children. In the event that a marriage is dissolved, legal guardianship may pass to only one parent. Parents may also appoint guardians in the event that they are no longer capable of assuming their guardianship role, normally in the form of a last will and testament. Courts may also appoint legal guardians.
Any person can be appointed a legal guardian. Usually it is a person who is related to the ward, has a relationship with the ward or who will act in the best interests of the ward. Court ordered legal guardians may however have no relationship with the ward but be qualified in some way (usually in a legal capacity) to advocate for the rights and requirements of a ward.
In most cases a ward is a minor or child under the age of 18 years who does not have the ability or legal capacity to manage their own affairs. This happens when a natural guardian (normally the parents) are no longer able to act on behalf of the child or where their legal rights have been suspended by a court of law for any reason whatsoever.
A ward can also be a person who does not have the capacity or competency to care for themselves or manage their own affairs. This includes persons who are physically disabled, mentally incapacitated or the elderly who are no longer able to manage their personal and property affairs.
A legal guardian has wide range of duties and responsibilities to their ward in a legal, personal and property capacity as they relate to a specific ward.
In the case of a minor, the legal guardian will absorb all rights, responsibilities and duties that are normally afforded to a natural or adoptive parent. This includes providing shelter, food, education, clothing etc. to the ward. It also includes protecting and managing property of the minor and making legal decisions on behalf of the minor.
In the case of an incompetent or incapacitated person, the legal guardian has similar duties as set out above, however the legal nature of the responsibilities may become more complicated. Additional duties may be necessary depending on the requirements of the ward and the provisions of a court order.
In the case of a minor, duties and responsibilities of legal guardian usually terminate when the ward reaches the age of majority (18 years old). However, a court order may extend this period taking into consideration the best interests of the ward.
In other words, a court ordered guardianship may be extended beyond the age of 18 years normally where the court finds that the ward may not be able to manage their own personal or property affairs at that time.
In the case of incapacitated wards, court ordered guardianship terminates within a set period of time or at a time where the ward is able to resume their own responsibilities, as determined by the court. The court may reassess the need for guardianship at any given time or when requested by the guardian or ward. This type of legal guardianship normally only terminates when the ward is no longer living.
Before appointing a legal guardian, it is advisable to seek advice from a family lawyer or attorney. These legal representatives can also assist with any issues regarding legal guardianship.