Guardianship in ordinary discernment refers to a position capable of protecting or guarding. The Oxford learner dictionary defines guardianship as the state or position of being responsible for somebody or something.¹ The concept of guardianship holds a very important position in law. It can be defined as a legal obligation imposed upon a person, to provide care for another who is unable to maintain his or her own affairs. The Guardianship is a legal relationship wherein a legal duty is created upon a person or an institution whose name is instituted in a will or by the order of the court, and is duty bound to take care of a minor child or an incompetent adult.
Guardianship can be classified into three types. The first type would include a friend or a family member of a ward. It includes a natural guardian. Further, the second type includes a public guardian wherein some government agencies may serve as a guardian. And lastly, there are professional guardians which include attorneys and other professionals. The professional guardian is appointed when the candidates from the first two categories are not willing to or unable to maintain the ward in question.
An appointment of guardianship is restricted to the person who is incompetent to take care of their own affairs. A guardian may be appointed for a minor person below the age of 18 (as it is taken, they are unable to handle their affairs) and for people who due to some mental, physical disabilities etc. are unable to maintain themselves.
The eligibility for the appointment of guardian is highly influenced by the ‘best interest’ of the ward. The court may consider various factors such as education, health, trustworthiness and the relationship of the potential guardian vis-à-vis a prospective ward. Opinions of the ward can also be taken into consideration by the court. A guardian having conflicting interest in the guardianship cannot be appointed. The court also has the power to limit the role of the guardian either exclusively to the care of the person of the ward or exclusively to the assets and finances of the ward
A guardian is responsible for handling the finances, property and personal care of a person incompetent to do so.² Apart from the active role of the court in the determination and overviewing the role and functions of the guardian, a good guardianship attorney also plays an important role in the matters of guardianship. His expertise involves advising which guardianship should be granted based on the circumstances, to help the clients with complex and technical paper work and also to represent a client (guardian) before the court of law after appointment under the guardianship laws. An attorney ensures that the hearing for guardianship is conducted correctly and is in compliance with the just principles of law. Therefore, do not go into a guardianship hearing blindly.
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The best way to account for guardianship is by addressing a guardian for your children in your estate planning documents. Take a second to view offers of various companies that provide unique legal services for a low price.
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