There are three types of guardianships granted and overseen by the Probate Court; guardianships for adults, guardianships for minors and guardianships for individuals with developmental disabilities.
Adult guardianships are used when an individual is impaired by mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other cause so that they lack sufficient understanding or capacity to make or communicate informed decisions and need someone to make such decisions for them.
Minor guardianships are used to provide legal authority for adults, other than the parents of the minor, to take care of the minor for a short or long time because the parent or parents of the minor are unwilling or unable to safely and adequately care for their child. While a minor guardianship is in place the guardian, and not the parent, has the right and responsibility to make decisions about and care for the minor child.
There are two types of Minor Guardianships; full guardianship and limited guardianship.
Any of the following situations must have occurred:
• Parental rights of both parents or the surviving parent must have been terminated or suspended by the parent’s death, disappearance, or confinement in jail or other place of detention. A petition can also be filed if a Court has suspended or terminated the parent’s rights after finding the parent or parents incompetent.
• A full guardianship may be granted if the parent or parents have permitted the minor to reside with another person and have not provided the other person with the legal authority for the care and maintenance of the minor.
• A full guardianship may also be granted if the biological parents of the minor were never married to each other and the custodial parent has died or disappeared, and the other parent has not been granted legal custody by a Court order. In this situation, the proposed guardian must be related to the minor within the 5th degree by marriage, blood, or adoption.
A Petition for Appointment of Limited Guardian can only be completed by the custodial parent(s) of the minor. Both parents, or the one parent with legal and physical custody must sign the petition and voluntarily consent to the guardianship and the suspension of his/her parental rights. A copy of the child custody/support order and any other modifications made to those orders must be filed with the petition. Additionally, a copy of the minor’s birth certificate must be filed with the petition
Developmentally Disabled Guardianships
Developmentally disabled guardianships are used under the Mental Health Code. “Developmental Disability” means, for a person more than five years old, a severe, chronic condition that is attributable to mental or physical impairments or a combination of mental and physical impairments; that manifested before the person is 22; that is likely to continue indefinitely; that results in substantial functional limitations in three or more of the following areas: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, and economic self-sufficiency; and that reflects the individual’s need for long-term special, interdisciplinary, or generic care, treatment, or other services.
From birth to age five, developmental disability means a substantial developmental delay or a specific congenital or acquired condition with a high probability of resulting in a developmental disability as defined above.
A guardianship for a developmentally disabled person should be undertaken only to promote and protect the well being of the individual and encourage the development of maximum self-reliance for the individual. The guardianship should be limited by the Court based on the developmentally disabled individual’s actual mental and adaptive limitations.
While individuals can file Petitions on their own without the assistance of an attorney, the services of an attorney can often be needed. These Petitions often concern family and are emotionally difficult for the Petitioner. There are often disagreements within the family as to whether the individual requires a Guardian or Conservator, or who the appropriate individual is within the family to serve in that capacity.
As an attorney that is experienced in this are of law, I can assist a family in the preparation of the Petition and other documents to assure that the family “gets it right” the first time. This can relieve the emotional burden and provide clarity for the family in these unfamiliar waters.