Guardianship is in reference to a legal responsibility designated to an individual by a probate court. An individual called a legal guardian is legally enabled for making personal, medical, and financial decisions on another individual’s behalf, called a ward. In a lot of cases, the ward is going to be minor child, and/or a mentally or physically debilitated adult. Usually, a ward needs to be unable to make decisions on their own behalf to be awarded a legal guardian. In a number of states, guardianship can also be called to conservatorship.
There are a lot of various kinds of guardianship relationships. The kind of guardianship required is going to be based on the circumstances, requirements, and the ward’s best interests. Many guardianships award a legal guardian full decision-making privileges, whereas others restrict the guardian to just making financial and/or legal decisions.
The probate court is going to make the final decision as to whom can serve as legal guardian for the ward. The probate court is going to consider a lot of factors like the possible guardian’s relationship with to ward and the ward’s wishes, if they’re able to declare a preference when determining whom to name as guardian.
A contested guardianship is in reference to situations where the guardian status of an individual is disputed or doubted. This most commonly happens when the legal guardian is not meeting their role as guardian. An instance would be when the guardian neglects to provide essential living necessities for their ward. Contested guardianship is usually associated with carelessness or abuse. While challenging or contesting guardianship arrangements, the lawsuit might involve several parties challenging the prior court order designating the guardian.
How is the Court going to Establish Who is Suited to Be a Guardian?
As afore mentioned, the court bears in mind a multitude factors when establishing whether to award legal guardian status to a possible guardian. Many of these factors comprise of but might not be restricted to:
- The relationship of the possible guardian and the ward, like if they are related to each other or are best of friends;
- The type of the ward’s circumstance, like if they are a minor child, elderly, debilitated, etc.;
- If a formal guardianship document is in existence and was signed by the ward, as this document could contain guidelines or preferences;
- Whether the guardianship is an emergency or temporary in type;
- The financial history of the guardian; and
- The mental/physical, and/or emotional soundness of the guardian.
If a guardianship is being contested, the court may re-examine these considerations to establish if their preliminary assessment continues to be valid. An analysis of these considerations can help the court establish guardian suitability in the event of a guardianship legal challenge. To reiterate, guardianship is usually contested when new evidence comes up that the present legal guardian is unsuitable to take care their ward.
What Are Competing Guardianship Applications?
Competing guardianship applications details a situation where more than one individual simultaneously applying to be a ward’s guardian. An instance of this would be an elderly individual requiring a guardian, and each of their two children apply to be named their parent’s legal guardian.
In these cases, the court needs to still examine each of the parties involved in order to establish which guardian is going to serve the ward’s best interests. In situations that involve multiple siblings wanting to be their parent’s legal guardian, their likewise backgrounds could make the determination a close one. Both parties would need to present the court evidence to back up their reason as to why they would be most suited.
The circumstance could be further convoluted when there are matters involving the discontinuation of a present guardianship. A lot of guardianships are brief and are going to automatically terminate when the situation needing the guardianship have waned. An instance of this would be when the minor ward reaches eight teen or when the ward passes away. A guardian might also petition to have the guardianship discontinued by filing a request with the court to renounce from their position. An interested possible guardian might push for discontinuing an existing guardianship as another way to challenge the guardianship.
What Else Do I Need to Know About Guardianships and Guardianship Legal Challenges?
The process of acquiring a guardianship is going to likely differ from state to state. Nevertheless, usually the initial step is filing a petition for guardianship designation with the probate court in the county where the ward resides. A lot of probate courts stipulate that a hearing needs to be held and attended by the possible guardian, in addition to the ward. At such hearings, the judge is going to assess the case and listen to each interested party. Following the hearing, the judge is then going to determine which party, if any, should be awarded legal guardian standing.
As mentioned before, the most common legal challenge concerning guardianship is the simple question of who needs to serve as the legal guardian of the ward. Challenges might also come up over the ward’s estate, or when there are child support payments are involved. It is essential that the best interests of the ward’s be held above everything else, and that any legal guardian performs their duties in according to those interests.
Am I Going to Need an Attorney for Help With Contested Guardianships?
When you are a legal guardian and your status is being challenged, or if you are contesting the designation of another legal guardian, you need to consult with a proficient and knowledgeable guardianship attorney.
An experienced guardianship attorney can assist you in understanding your state’s particular laws concerning guardianship, in addition to your legal rights and alternative. Lastly, an attorney is going to be able to represent you in court, as required.
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.