How to Apply for Guardianship

Decide whether becoming a legal guardian is right for your situation. Guardians are court-supervised caretakers for minors and incapacitated persons. Guardians are responsible for the wellbeing of their wards (the person for whom they are the guardian), and may also be responsible for handling the person's assets and finances. The guardian must periodically report to the court on the ward's status. Make sure that you are prepared to accept the responsibility of acting as a legal guardian.

• In some states, guardianships are called conservatorships. In California, for example, guardianships are for children, and conservatorships are for incapacitated adults.^{[3] [4]}
• Consider alternatives to becoming a legal guardian.^[5] Think about other avenues to protect the child's or adult's well-being before starting the process to become someone's legal guardian. Some alternatives you might look into include a power of attorney, living will, health care proxy, and/or a representative payee arrangement.^[6] You may also be able to file for a temporary guardianship, which is a faster process for emergency cases, and ends when the court appoints a permanent guardian.^[7]

Verify that your prospective ward is eligible for a guardianship. The eligibility standards for guardianships differ between children and adults. A child can have a non-parent guardian as long as the child is under 18 years of age and has not been emancipated by a court order. An adult is not eligible for a guardianship unless the court finds evidence that the adult is legally incapacitated, either by age or disability. Incapacity must be proven by clear and convincing evidence that the person cannot provide his or her own food, clothing, or shelter, manage physical health or financial affairs. Procedures differ by state, but courts will require a statement from a doctor, and will appoint an attorney to investigate and represent the interests of the proposed ward.

• Having someone declared legally incapacitated can be a challenging process. The process can be further complicated if the ward has substantial property or assets to manage, or if the ward is a Native American (which may raise issues of federal law). Consider hiring an attorney to handle your case. You can get referrals from friends and family, or from attorneys who may not handle guardianships but know a trusted colleague who does. You can also use referral services through your state and local bar associations, or just search online.
• Some courts with particularly complicated guardianship processes may not hear guardianship applications filed by non-lawyers. Verify your court's rules before you begin.

Verify that you are eligible to become a guardian. To become a guardian, you must demonstrate to the court that your are capable of accepting the responsibility of a guardianship. You do not need to be a relative of the ward.^[8] You may be found to be ineligible if you are have a history of bad conduct (especially a felony conviction), conflicts of interest with the ward, inexperience, lack of education, or are a minor or incapacitated person yourself. Furthermore, if two or more eligible people both wish to become the guardian, the court will have to choose one over the other.

• In Texas, for example, if more than one person seeks a guardianship, the court will consider whether the proposed ward designated someone to serve as guardian prior to his or her incapacity. The court will then give priority in to proposed guardians in the following order: anyone designated by the last surviving parent of the ward, the ward's spouse, the ward's next of kin, and then non-relatives.

Differentiate between guardianship of the person versus guardianship of the estate. Your state may require you to submit different forms depending on whether you wish to become the guardian of the person or the estate, or both. Guardianship of the person means that you are responsible for the well being of the ward, from personal care and maintenance to medical decisions.^[9] If the ward is a child, you will be responsible for their living conditions, schooling, medical needs, and any harm the ward causes.^[10] Guardianship of the estate means that you are tasked with managing, investing, protecting, and disposing of the ward's assets and property in accordance with the law and the ward's best interests.^[11]