How Hard is it to Terminate Guardianship?

Guardianships are a legally based relationship among a named party (the “guardian”) and a 2nd person called the “ward”. In a lot of cases, the ward is usually a child or a minor that is below the age of adulthood (around eight teen in many states). Nevertheless, a guardian may also be named for an adult with a mental disability or becomes debilitated because of an illness or injury.

The guardian’s purpose is to provide care and safeguarding for the ward, in addition to making legal decisions on the ward’s behalf. In general, guardians are usually chosen in 1 of 2 ways: either by a court or through legal documentation known as a “guardianship agreement.”

Guardianship agreements are used in the transferring of specific rights to the guardian that enables them to make critical decisions and the ward’s care. These agreements could be stand-alone documentation, integrated into an individual’s will, or drawn up as an affidavit. In some cases, the party naming the ward might also utilize forms devised by a local court or other state agency.

An instance of when a guardianship agreement might be required is when the parents of a child wish to guarantee their child is going to have someone to watch over them if they no longer are able to care for them. This could occur because of reasons like death, debility, incarceration, etc.

Lastly, it needs to be noted that each state has individual requirements and procedures for establishing a guardianship. The conditions included in a guardianship agreement also are inclined to vary per agreement. The reasoning for this is since every ward and appointee has requirements that are individual to their own personal situation.

Therefore, even when you devise a guardianship agreement using conventional forms from a court, you should still think about having an attorney examine the documentation.

At What Time Can a Guardianship Agreement be Overturned?

There are specific situations in which a guardianship agreement may be overturned or rescinded. For example, it might be possible for a guardian to bypass legal guardianship responsibilities when they are no longer able or wanting to continue providing the responsibilities needed to care for the ward.

Another instance of when a guardianship agreement might be overturned is when the agreement expires by itself. This could occur if a guardian is only designated on a temporary basis or when a ward’s parents want to reestablish custody over their child and the court comes to the conclusion that this would be in the best interest of the child.

A ward might also request the court to overturn a guardianship agreement when they believe that a guardian is not carrying out their responsibilities according to the agreement. Another instance is when they are no longer a minor and feel that they no longer require a guardian to make decisions for them.

Another way a guardianship agreement can be overturned or revoked is if a 3rd party petitions the court to withdraw the guardian in cases of mistreatment or neglect. For instance, when a guardian is abusive against the ward, shows signs of violent inclinations, or neglects caring for the ward completely, then a court can step in to revoke the agreement and name a new guardian.

How Does the Court Determine Whether or Not to Overturn a Guardianship Agreement?

The court that originally named the legal guardian (commonly a local family law or probate court) will also be the one that in the end has the power to overturn or dissolve the guardianship agreement. Following either the guardian, ward, or 3rd party submitting a request for removal, the court is going to schedule a hearing.

During the hearing, the court is going to evaluate the circumstances at hand and establish if the guardian is no longer appropriate to carry out the responsibilities required by the agreement, or when the ward has reached the age to make personal or financial decisions on their own accord without the guardian’s help. Subject to the facts, the court will also determine at the hearing whether a new guardian is required to be named to care for the ward through a new guardianship agreement.

Overall, judges are usually given prudence to decide whether to overturn guardianship agreements. Because each case presents individual facts, the judge is going to need to examine evidence from any parties impacted by the issue (for instance the ward, the guardian, 3rd parties, etc.). A judge might request for proof such as a ward handling their personal or financial affairs by themselves, or factual evidence that a guardian is failing to carry out their responsibilities.

Furthermore, many states require a petitioner to present specific reasoning for dissolvement. The laws in those states are going to give guidance on when dissolvement of a guardianship agreement may be fitting. For example, one common reason for dissolvement is when a guardian mistreats the ward. Therefore, the removal of the abusive guardian and the naming of a new guardian is going to be in the best interests of the ward’s health and welfare.

Some other considerations that a court might take into account include when the guardian is convicted of a crime, carries out fraud, charges inappropriate guardianship fees, declines to follow court orders, and/or misuses a ward’s financials and assets.

What Are the Steps Required to Overturn a Guardianship Agreement?

The steps to overturn a guardianship agreement is going to depend on the individual petitioning the reversal in addition to the laws of the jurisdiction in which the petition is being submitted. Overall, most cases are started by filing a petition to dissolve guardianship within the same court that named the present guardian.

A petition for the termination of guardianship is legal documentation that requests the court to overturn the agreement and to dissolve the rights that a guardian has over their ward. There might be other documentation that is required to be submitted alongside the petition, but this is going to depend on both state law and local court regulations.

For example, many courts are going to ask for proof at this stage that demonstrates a parent is fit to get their child back (for instance financial institution accounts, rehabilitation certification, a consistent home environment, etc.).

After the paperwork gets filed within the appropriate court and the relevant filing fees are paid, the petitioner is going to need to acquire stamped copies of their paperwork from the clerk of the court. The petitioner is then required to mail the stamped copies to any involved parties (for instance the guardian). The petitioner needs to also keep one copy for their records.

Once these documents get mailed, the petitioner is required to file evidence service with the court. The clerk is going to then schedule a court hearing that the petitioner needs to go to. As mentioned before, the court is going to determine whether overturning the guardianship agreement is in the ward’s best interests at the hearing.

When it is, then the court is going to issue an order to overturn or nullify the guardianship agreement. When it isn’t, then the petitioner is going to have a right to appeal the court’s determination.

In conclusion, it needs to be noted that the steps to dissolve an adult guardianship might differ from the ones needed to overturn a guardianship for a minor ward.

Am I Going To Need a Lawyer to Overturn a Guardianship Agreement?

Even though it is possible to overturn a guardianship agreement, in doing so isn’t always the simplest of processes. The reasoning is guardianship agreements are deemed as highly delicate legal arrangements since they offer instructions for the care for those that are considered defenseless in the law’s eyes; specifically, children and debilitated adults.

A guardian is also usually named by either the court or a close family member, meaning the individual chosen is probably an individual that is trusted and seems they would be faithful to the ward. Therefore, the removal a guardian might be challenging. Hence, if you wish to petition the court to overturn a guardianship agreement, it is strongly recommended that you speak to a guardianship lawyer near you prior to you filing any documents for removal.

An knowledgeable guardianship lawyer can assist you in drafting, reviewing, and submitting the petition to the appropriate court for their approval. Your lawyer might also provide legal representation throughout any court proceedings, like when the guardian or another party disputes your petition for the reversal of the guardianship arrangement.

Additionally, your lawyer can also determine the odds of your petition being granted and can offer advice on what other measures you could take should it be denied.

 

Source:

1. Peeler, T. (2020, May 27). Contested guardianship lawyers. Retrieved April 26, 2021, from https://www.legalmatch.com/law-library/article/contested-guardianship-lawyers.html

Arizona Family Law

Naming guardians in your will can be part of your estate plan. You may think you’re too young or don’t have enough money to justify the expense, but if you have children, you have priceless assets. There are many considerations when naming guardians for your kids. However, the process doesn’t have to be expensive or complicated.

There’s nothing better than the peace of mind you will have knowing you’ve protected your family at a time when they need it most. Let us help. Schedule a consultation or contact Ogborne Law, PLC of Arizona today.