Guardianships are established for any person who is determined to be under a disability. Once a guardianship has been established, the guardian has all authority to act and speak on behalf of the dependant. These are in two forms: adult guardianships and minor guardianships.
The need for a minor guardianship arises when the natural parents of a minor child have either died or become disabled to the extent that they can no longer care for the needs of the child. In these circumstances, the court will look for the most logical person to provide for the child. If the parents established by will or power of attorney that a particular person should serve as the child’s guardian, the court will naturally have a preference to that named individual.
The court still must hear evidence to show that the placement will be in the child’s best interest, but the naming of this individual quickly narrows the field for the court to consider. Without such guidance, the court will first look to the extended family for an appropriate candidate and perhaps to other parties who have served as care providers to the children. In some cases there may be more than one party interested in being the guardian, the court then must decide between the parties as to which would be in the best interest of the child. The court may also appoint an attorney to represent the child’s interest in any litigation that may ensue. This attorney, known as a guardian ad litem or GAL, will attempt to investigate the parties in order to provide recommendations to the judge.
In adult guardianships, an interested party petitions the court to become the guardian. It must be determined first that the individual is in fact incapacitated and unable to handle his or her own daily affairs and then it must be determined that the petitioner is the best person to do this.
The court will appoint a GAL to represent the individual who is potentially incapacitated. The GAL’s role is to insure that the individual is in fact incapacitated. There is always potential for someone to attempt to become the guardian of another for solely selfish purposes. The GAL can present evidence and argue in opposition to a petition for guardianship if he believes that it is not in the person’s best interest. If the GAL determines that it is in the individual’s best interest that the petitioner be granted the guardianship, the court will typically follow that recommendation without much further investigation.