How Hard is it to Terminate Guardianship?

How Hard is it to Terminate Guardianship?

Legal guardianship remains an important protection that allows one compassionate person to care for another. The practice is most commonly ordered by the courts to ensure adult oversight of minors. Although used to a lesser degree between adults, guardians help people navigate important everyday life decisions.

When the court appoints a friend, relative, or professional from an agency to become the guardian of an adult, it’s often the result of diminishing health or incapacitation. For children, these issues can be added to a disheartening list of problems such as abuse, neglect, abandonment, and becoming wayward. Although the reason the court considers someone a ward in need of protection and care, terminating a guardianship can be an uphill battle.

How To Terminate A Guardianship

It’s essential to keep in mind that adult and minor child guardianships can be vastly different. In large part, that’s due to the underlying reason the court deemed someone a ward of the court in the first place.

In both types of guardianship, the basic premise is that the individual cannot conduct reasonable self-care. This may be true of both minors and adults, but most children have parents in place to act in their best interest. When our valued elders, for example, begin to lose the physical and cognitive skills to make salient health, wellness, and financial decisions, oversight may be necessary. Other adults may temporarily fall ill, and the protections are put in place only until they recover.

When children go astray, become incapacitated, or a parent is unable to provide proper care for them, guardianship tends to be a stop-gap measure. Either the situation corrects itself, or the minor eventually becomes an adult and takes on their own decision-making. In either case, the court will need to be formally petitioned to end a guardianship.

How to Terminate an Adult Guardianship

In order to understand how to navigate the stringent legal process of ending a guardianship, it’s essential to consider how you got here. In all likelihood, either a third party petitioned the court and won a case against you to deem you incompetent, or you came to the process voluntarily. This difference has a substantial impact on termination.

Going to the court and asking to be voluntarily deemed a ward came with certain advantages. You probably had input about who would become your guardian during your recovery. And, your wishes about what areas this person would hold legal sway may have been negotiated. Terminating a voluntary guardianship often entails merely proving you have regained competence.

On the other hand, involuntary tracts could mean that you will face increased resistance from the party or parties that petitioned the court in the first place. That may mean overcoming objections as well as having documentation and testimony from experts that you are prepared to resume control over your affairs. These are common steps that are required to terminate a guardianship.  

  • File Legal Papers: A Petition to Terminate Guardianship, and a Citation or a Notice of Hearing, will need to be crafted and filed on your behalf. Supporting documents may be required to gain a hearing. Materials may include a final accounting reportIf your guardian or conservator oversaw your estate while recovering, a final reckoning of all financial records must accompany your petition. Papers may call for letters from you’re your physicians. Your doctors must provide statements that assert you have regained the ability to conduct your own affairs competently.
  • Serve Guardian & Others with Papers: All relevant parties must be formally notified that you have petitioned to terminate the guardianship via certified mail. If this step is not thoroughly completed, a judge will likely not hear your case.
  • Attend a Hearing: The judge will read the pertinent documents and likely ask questions. If others object to the petition, more comprehensive testimony may be required. Once the judge has been satisfied that you meet the legal standard, an Order Terminating Guardianship will be issued.

If the guardianship pertained to end-of-life considerations, the court generally requires a financial accounting before releasing the guardian. The challenges confronting parents or other loved ones trying to terminate a guardianship and regain custody can be significantly different.

How to Terminate Guardianship Over a Minor

In order to restore your parental rights and regain custody of a child, you may be tasked with petitioning the court to terminate a guardianship. Much like when adults are deemed wards of the court, the reason your child has a guardian in place will likely impact how difficult you can anticipate the process ahead.

For instance, if another family member petitioned the court to have your child made a ward, the underlying claims will likely need to be adequately addressed. If it involved substance abuse, neglect, or a health condition, a proactive filing and subsequent argument at a formal hearing would have to overcome the initial court findings. In other words, you face an uphill battle of basically proving your ability to properly care for yourself and the child. The goal of this rigorous process will involve persuading the court of the following.

  • The adverse situation has been resolved
  • It’s in the child’s best interest to be placed with a parent
  • You can successfully provide for daily health, wellness, and emotional needs of the child
  • You are financially stable or are receiving adequate public assistance
  • You enjoy positive extended family and community relationships

The process of regaining parental rights and terminating a guardianship requires crafting a highly persuasive petition and supplying authoritative supporting documents, as well as possible witness testimony. There are also a variety of legal pathways that can be accessed, depending on how and why you got to this point.

  • When Guardians Object: In cases in which the court-appointed guardian objects to their removal, a full hearing may be required. This brings together the key stakeholders in the process to determine whether to keep court oversight in place or give your child back to you.
  • When Guardians Agree to Termination: In such cases, parents need only demonstrate that they are competent and able to serve the best interest of their child in a stable and healthy fashion.
  • Terminating for Adoption, Marriage, or Service: The act of adoption effectively ends ward of the court status. The same holds true in marriage, and minors who enlist in the military enjoy grounds to terminate the guardianship over them.
  • When a Child Turns 18 Years Old: When a minor reaches the age of majority, they are no longer a ward of the court and the guardianship times out. The court-appointed person would be wise to file a notice with the court.
  • Guardianships Over Estates at 18 Years Old: Control over assets does not generally end when a minor turns 18 years old. The court will need to be petitioned, and a final accounting of the finances must be filed. The court must issue a directive releasing the assets before the previous ward can access them.
  • Cases of Emancipated Minors: When the court agrees to emancipate a minor, they no longer are deemed a ward of the court. Part of the hearing should include the automatic termination of the guardianship.

In some cases, the court-appointed person finds that they can no longer serve in that capacity. This could be due to illness, relocation, or they believe terminating the guardianship is in the minor’s best interest. The court enjoys great latitude in such cases and may decide to resolve the matter in a number of ways. The court may agree that the minor no longer needs or benefits from oversight. In many instances, the court appoints a new guardian to take over the responsibilities.

Should You Speak with an Attorney to Terminate a Guardianship?

The short answer is: Yes. That’s because the court system involves complex filings, documentation, and bureaucracies that are difficult for everyday people to navigate. A simple missing document or misstep can upend your efforts to terminate a guardianship. It’s in your best interest to have a determined and compassionate attorney who works in the family courts on a daily basis. That experience allows us to put forward the best case possible on your behalf and get the results you deserve. If you are considering terminating a guardianship, call Lilac City Law and schedule a consultation today.

Contact

  • This field is for validation purposes and should be left unchanged.

What to Know During the Guardianship Nomination Process

What to Know During the Guardianship Nomination Process

If something happened to you and you were unable to take care of yourself or your children, who would step in? Ideally, it would be someone you chose. Nominating a guardian before something happens allows you to do just that.

What Is a Guardian?

Think back to school forms asking for a parent or legal guardian. A guardian is a person who takes care of someone else when that person is incompetent to handle their affairs on their own. This could be due to a serious injury or illness. When minor children are involved, they may need a guardian if both of their parents are incapacitated or pass away.

A guardianship will generally cover similar decisions to what a parent could make for a child — even when the person needing a guardian is an adult. This may include medical decisions and, for minors, other life decisions such as where to go to school.

Guardianships can also cover managing the person’s finances, but finances are sometimes broken up into a separate conservatorship. Exactly what a guardian or conservator can do will be spelled out when the court approves the guardianship or conservatorship.

How Is a Guardian Different From Godparents?

When your children were born or shortly after, you may have appointed godparents. Godparents are often expected to step in and take charge of the children if something happens to a parent, but appointing a godparent is largely a religious or ceremonial action. Godparents aren’t directly recognized under the law.

To give a godparent the legal authority to act, and avoid conflicts with other family members who may wish to step in instead, you will need to go through the legal process of appointing the godparents as guardians, trustees, or other legal roles.

How Is a Guardian Different from a Power of Attorney?

A power of attorney might grant all of the powers that a guardian can exercise. The difference is mainly timing. You sign a power of attorney when you have full mental capacity. A guardian is only appointed after you’re incapacitated. Part of the guardianship appointment process can include reviewing the wishes you specified when you still had full mental capacity. However, a power of attorney cannot be executed if you have diminished mental capacity, and it may be voided if a court finds you lacked capacity when you signed it.

Because a power of attorney can be limited in scope based on how you had your lawyer word it, it may not cover all of the actions that need to be taken on your behalf. In those situations, a guardian would be appointed to fill in the gaps.

How Do You Select a Guardian for Yourself?

Like a person dying without a complete will, the law has default rules for how to select a guardian based on relationships and willingness to serve. The court will also consider the ability to do the job of each person who wants to be the guardian. This can lead to serious family conflicts and large legal bills when two family members wish to serve as the guardian and can’t come to an agreement.

To avoid these types of problems, you can nominate a guardian. The judge isn’t bound to follow your nomination but will give it great weight and will only overrule your nomination with a strong cause. The process is called nomination of guardian, and you can select any adult of sound mind. Like a will, the judge will review your selection to ensure you were mentally fit to make the decision and weren’t under duress or tricked into doing so.

How Do You Select a Guardian for Your Children?

The process for nominating a guardian for your children is similar to nominating a guardian for yourself. The only real difference is that it’s even more important to make your decision in advance so that your children can have a sense of stability and not be left hanging during long court battles.

You should, of course, also talk to potential guardians to see if they are willing to take on this responsibility. However, being nominated does not obligate the person to accept the judge’s appointment if the time ever comes. Therefore, you probably want to select at least one alternate.

Do You Need a Guardian If You Left a Trust for Your Children?

You may have set up a trust to provide for your children financially in case something happened to you. The trustee is then able to manage their financial affairs in accordance with the trust.

However, someone still needs to take custody of the children to manage their daily lives and important life decisions. This is where you need to nominate a guardian, and your estate planning documents should lay out the responsibilities of both the trustee and the guardian.

Who Supervises a Guardian?

Once appointed, a guardian must make regular reports to the court. This includes financial information as well as other major decisions. Other family members can also go to court to contest the guardianship if they believe the guardian is doing something improper.

What If There Is a Conflict Between a Guardianship and a Power of Attorney or Trust?

There should be no conflicts with a guardianship and power of attorney or trust because the court should appoint the guardian in consideration of other estate planning documents. The guardian should only carry out duties not already provided for. To avoid confusion, you should attach your other estate planning documents to your nomination of guardianship to ensure that the judge will be aware of their existence. If a power of attorney or trustee believes a guardian was appointed improperly or is going beyond their role, they can contest those actions in court.

Are There Downsides to Being a Guardian?

Whether a guardianship is for an adult or minor children, being appointed as a guardian is a major responsibility. Like a parent, it can mean making tough choices and sometimes needing to put the other person’s wellbeing before the guardian’s own. The nominated guardian will also need to go to court during the nomination process and will need to make ongoing reports to the court as long as they remain guardian. Being a guardian is a lifetime appointment unless the judge appoints someone else.

Does a Guardian Have to be Local?

A guardian can theoretically live anywhere in the world. However, the judge will want to make sure that the guardian will be able to effectively perform their responsibilities without being unduly impacted by long-distance. For minor children, since they will often go to live with the guardian, the judge may also consider how a move would impact their lives and their access to other family members. You can and should include your wishes on these issues in your planning documents so the judge can understand the choices you made and to avoid conflicts between family members.

If you’re relying on a long-distance guardian, you should also consider who will act in a sudden emergency such as you being rushed to a hospital. You may want to have an alternate power of attorney that gives a more nearby family member the power to act until your guardian is able to step in.

Who Pays for Legal Fees During Guardianship Proceedings?

Your appointed guardian should understand that they don’t have to take on legal costs. If you have liquid assets, the court will pay the attorneys reasonable fees from your funds — just like any other of your expenses would be handled. If you don’t have liquid assets, there is a special guardianship fund established by the government. In no cases does the appointed guardian pay for court fees, although you may wish to set aside money to cover other expenses they may face while acting as a guardian.

Please note that this is separate from creating your nomination of guardian documents. Those costs would be arranged between you and your attorney just like any other legal work.

How Quickly Can a Guardian Be Appointed?

Even for a nominated guardian who isn’t contested, the court process is usually measured in weeks if not months. During an emergency situation, your family could petition the court to appoint a temporary guardian pending full court review. This person could potentially be the guardian you nominated.

In more urgent circumstances, such as an emergency room doctor needing an immediate decision, any power of attorney or living will documents that you created and are readily available will be used. Otherwise, the hospital or other entity would attempt to contact your next of kin and follow their authority in accordance with local law.

Talk to an Experienced Estate Planning Attorney

To learn more about how nominating a guardian fits in with your estate planning strategy or to start the nomination process, talk to an experienced estate planning attorney at Lilac City Law today.

Contact

  • This field is for validation purposes and should be left unchanged.