Guardianship and the concept of in-loco parentis

Guardianship is a legal arrangement that prioritizes the wellbeing of vulnerable individuals who are unable to care for themselves due to incapacity, age or other influencing factors by granting responsibility for their care and decision-making to another individual who is best placed to do so.

Establishing guardianship, whether it is of a minor [1] or a vulnerable adult [2], requires following a defined legal process in which a petition is filed in court by the person wishing to become a guardian, who must present evidence to substantiate the requirement for a legal guardianship arrangement to be established.

Legal criteria for guardianship

The petitioner must demonstrate that the proposed ward requires a guardian to ensure their wellbeing. When the proposed ward is a minor, the guardian may be required to act “in loco parentis”, which entails assuming parental obligations without undergoing a formal adoption. Discharging parental obligations includes caring for the minor on a day-to-day basis while ensuring they receive adequate healthcare, education, and emotional and financial support.

If the proposed ward is a vulnerable adult, the petitioner must demonstrate that they are unable to manage their personal and financial affairs due to their age, a developmental disability or a medical condition. The court will need to assess the competency of the proposed ward through the use of medical evaluations and other evidence to determine whether they need a guardianship.

Who can become a guardian?

Typically, a petitioner will be related to the proposed ward, but this is not necessary as anybody aged 21 or older with a valid concern for the proposed ward’s welfare is entitled to file a guardianship case. Parents may name guardians for their children in their will or other legally enforceable signed documents.

The court will only appoint a guardian if it is in the proposed ward’s best interests and their parents agree or are unable to fulfill their parental obligations due to incapacity, abandonment or legal rescindment of their parental rights.

A guardian will only be appointed once the court has established that the petitioner has no criminal history and is financially stable and suitable to undertake the responsibilities of guardianship.

A guardian’s responsibilities

When somebody is appointed as a guardian, they assume responsibility for meeting their ward’s emotional, physical, financial and mental needs. This includes providing them with custody and care in the form of food, shelter and appropriate medical care and interventions. Guardians must act in their ward’s best interests at all times, so decisions pertaining to medical care and treatment must be carefully considered on an individual basis.

They must manage their ward’s finances, pay their bills and make appropriate financial decisions on their behalf. If the ward is a minor, the guardian must make educational decisions for them, including choosing a school that suits their needs, ensuring that they attend, participating in events, and approving educational plans, including in cases where specialist educational support must be provided.

Guardians are legally required to report periodically to the court, providing updates on their ward’s wellbeing and financial status.

Considerations for prospective guardians

Whether you wish to assume in-loco parentis responsibilities for a child or guardianship of a vulnerable adult, you must understand the implications of this decision prior to petitioning the court. Assuming guardianship responsibilities is a long-term commitment that can have emotional and financial ramifications for the prospective guardian as well as for the proposed ward.

Before petitioning the court, you should seek legal counsel from an experienced family law attorney who will be able to advise you on the specifics of your case, especially in cases where you wish to establish guardianship of a child or an elderly relative. Your attorney will guide you through the guardianship process, advise you on your rights, and ensure that your case proceeds in compliance with relevant laws.

It is helpful to prepare documentation that establishes the reasons for seeking guardianship and provides supportive evidence to substantiate your petition. This can include medical evaluations or assessments or evidence from third parties that support your claim.

If you wish to assume guardianship of an incapacitated adult, you should consider whether an alternative solution, such as power of attorney, may be more appropriate. Your attorney will explain the alternative solutions to you so you can make an informed decision.

Navigating legal guardianship is complicated

There are significant obligations with which legal guardians must comply, so it is important to take the time to familiarize yourself with the reporting requirements and implications of failing to fulfill your legal obligations prior to petitioning the court. For tailored advice and guidance, contact Lewis & Matthews, P.C. today. Our caring, compassionate and experienced team can provide you with advice and help you navigate the complexities of establishing a legal guardianship arrangement.