A guardian is someone with legal authority to provide care for a minor, or an adult who is incapacitated until they can do so themselves. The type of care varies, but it can include personal, or medical care. Because it is such a large responsibility, there are multiple requirements a person must meet to be considered for the role. Who can or cannot be a guardian?
For guardianship of a minor, a guardian must be at least 21 years old. Parents can name a guardian in their will to take effect if they die, but if a guardian is not named, the courts will appoint a person to serve as guardian. The court also will appoint a suitable guardian if parental rights are relinquished or terminated. Additionally, if a first guardian dies or cannot fulfill their duty to care for their ward (the minor), the court will name a replacement guardian. When a guardian is nominated, the courts will review their criminal history and credit history. The best guardian is the one who has a strong financial foundation and the one who does not have a criminal background (to ensure that the minor will be safe).
If an adult is incapacitated in such a way that they cannot care for themself or make financial or medical decisions alone, a guardian may be appointed. Like a guardianship for a minor, a guardian of an adult must be at least 21 years old. The court will determine if a guardian is needed for the adult, and then the prospective guardian’s credit and criminal history will be reviewed. As with guardianship of a minor, the best guardian for an incapacitated adult is the one who will act in the best interest of their ward. This could be a friend, family member, or another person who the court deems suitable.
So, who cannot be a guardian? Anyone under the age of 21 is ineligible to be a guardian. For example, if the parents of two teenagers pass away, the older teen cannot be a guardian for his or her younger siblings. Because the responsibilities required of guardians are so large, anyone who cannot provide for their ward’s basic needs (food, shelter, medical care, schooling if they are school-aged) will not be appointed. Certain prior offenses also disqualify a person from guardianship (including, but not limited to, violence against children, drug or alcohol abuse, or felony charges).
Would you like to inquire about appointing a guardian as part of your estate planning? The estate planning attorneys at Brown & Crona, LLC can guide you through the legal issues surrounding guardianships, so your loved one’s best interests will be protected. Contact us at (303) 339-3750 or send us a message online to meet with one of our team members.