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In general, a court can appoint a guardian in any case where an individual is temporarily or permanently unable to make decisions for him- or herself. This court-appointed guardian is often assigned to make decisions regarding the health and welfare of another person. Financial and legal choices may also be assigned to this surrogate decision maker.
When an adult with an established estate becomes incapacitated, he or she may be deemed a ward of the court. In these cases, the court may choose a person to make decisions for the ward. This court-appointed guardian is often called a conservator. The conservator may be assigned to make personal decisions, financial decisions, or both.
Judges are often very specific in the roles assigned to a conservator, especially if the ward is only partially incapacitated. For example, a conservator may be given the power to make major medical decisions, while the ward maintains the ability to choose his or her own physicians. In instances where the level of disability of the ward is expected to deteriorate, regular hearings are often scheduled to adjust the conservator’s responsibilities accordingly.
In cases involving children, the role of a court-appointed guardian can be difficult to define. Frequently, the terms custody and guardianship are used interchangeably. This misuse of terms, added to the occasional misunderstanding of guardian ad litem, can cause confusion.
The majority of divorce proceedings do not involve the designation of a court-appointed guardian. Parents are considered to be legal guardians of their children unless that right is specifically taken by the courts. Even when one parent is given primary custody, he or she is still not considered a court-appointed guardian. Generally, both parents retain the right to make decisions for their child while the child is in their physical care.
In cases where both parents are deemed unable to care for a child, a court-appointed guardian may be assigned. In many cases, the guardian is not the same person who has physical custody of the child. When this happens, the person with physical custody is generally responsible for the daily care and decision making for the child. The guardian, however, has the final say in regards to major decisions.
A common example of split legal guardianship and physical custody is foster care. Often, when a child becomes a ward of the court, he or she is placed with a foster family. The foster parents receive physical custody, while the agency in charge of child welfare in that area retains legal decision-making responsibility.
In cases involving abuse and neglect or in particularly unfriendly divorce proceedings, a special court-appointed guardian may be appointed. This person is called a guardian ad litem. Despite the title, a guardian ad litem rarely has the direct ability to make decisions but instead acts as a guardian of the child's best interests. In many areas, this equates to simply investigating the child’s situation and offering an opinion to the judge.
If you and/or your family has been abused by the guardianship system--if you've found your loved one's estate being drained by third-parties involved in the system, you are not alone. Look up guardianship abuse, and you'll be blown away by what is happening to elders and vulnerable adults--anything from being isolated from family to outright plundering of the elder's assets. Homes are sold off, belongings disappear, families are not allowed to know what is happening. This system has little accountability built into it, and the laws allow this abuse. Unfortunately, there are professionals taking advantage of the situation. It needs to stop.
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