What Does Legal Guardianship Mean?
Understanding Legal Guardianship in Louisiana: A Comprehensive Guide
Legal guardianship is a legal arrangement in which an individual is appointed by a court to care for the personal and property interests of another person, known as the ward. In Louisiana, a legal guardian is given authority over the day-to-day affairs of the ward, typically judged to be necessary and advantageous due to the ward’s incapacity or minority. Although legal guardianship can be temporary, defined by a duration set by the court, it is often a long-term or even permanent solution to providing the necessary oversight and management of personal and financial matters.
The role and responsibilities of a legal guardian are distinct from other contexts where a person is responsible for the care of another . For example, while a legal guardian may have the legal authority to make decisions on behalf of their ward, a custodian or a foster parent does not have the same legal restrictions or privileges as a legal guardian. Temporary guardianship in Louisiana is often granted to accommodate a situation that necessitates guardianship without requiring the more permanent long-term arrangement of a full legal guardianship. Institutionalization is also distinct from guardianship.
By becoming a legal guardian, the guardian is expected to act in the best interests of the ward—and they may be held legally accountable for safeguarding the ward’s wellbeing. Thus, while the requirements and duration of the guardianship are overseen by the court, the actions taken by the legal guardian can be legally scrutinized.
Minimum Legal Requirements for Guardianship in Louisiana
To become a legal guardian in Louisiana, there are specific prerequisites that one must meet. The first and foremost requirement is that the proposed guardian be competent to care for the ward. Louisiana courts generally rely on medical evaluations to assess the competency of the proposed guardian. The relevant qualifications required to be a guardian may differ according to the type of guardianship─minors, adults, and interdicts. For example, if the proposed guardian is an individual who had recently been adjudicated insane or has been found to suffer from a mental disease or defect, has been convicted of a felony (unless the individual has been pardoned), has been declared incapable of caring for his person by a court or if the individual is insolvent, they may have their Petition for appointment as a guardian denied by the court.
While there is no specific age requirement to be appointed guardian of a minor or an adult, in most situations the court prefers that the proposed guardian be at least 18 years old. A minor cannot be appointed as guardian over the other minors in a family. When a parent requests that their child be appointed guardian over their siblings, the court may appoint a guardian to hold the appointment until such a time as the minor becomes an adult.
Any person who applies to become a legal guardian in Louisiana must file a petition with the appropriate court. This petition will contain the name and address of the named guardian. The petition will be used to open a succession for the deceased. The petition will also include a list of the assets owned by the deceased, as well as debts. The signed petition will be sent to the clerk of court and in some cases, the court will accept affidavits from witnesses who can verify the death of the deceased and the place where he died.
Aside from the above requirements, the law does not impose additional requirements on those who seek to become guardians of a minor. To become guardian of an interdict, however, a family member of the interdict will need to have a certificate of competency completed on the proposed guardian.
Different Forms of Legal Guardianship in Louisiana
Louisiana law recognizes several types of legal guardianships, each tailored to different circumstances. Broadly, the most common types of legal guardianship are general and limited guardianship. A general guardian is granted broad authority, while a limited guardian’s authority is restricted by the type of rights retained.
There are also temporary and permanent guardianships. A temporary guardianship is only in effect for a limited period of time. A permanent guardianship continues in effect until the death of the ward or until the court terminates it. A temporary guardianship is not subject to the same notice and evidentiary requirements as a permanent guardianship.
Additionally, Louisiana law provides for ancillary guardianships for non-resident parents who wish to have their minor children more closely under the supervision and control of non-resident custodians while the non-resident parent travels or works outside Louisiana. Non-resident parents can also obtain endorsement orders from Louisiana courts to recognize their out-of-state custody orders.
There are also provisional and co-guardianships. A provisional guardianship automatically becomes a permanent guardianship unless the court terminates it at a hearing held within 60 days after the granting of the provisional guardianship. Co-guardianships allow for multiple individuals or entities to jointly act as guardians. An incapacity or death of one of the co-guardians does not terminate the guardianship. It only terminates that co-guardian’s authority.
In some instances, a court may appoint a curator ad hoc, or temporary curator. A curator ad hoc handles specific actions while the appointment is in effect. The appointment is of short duration.
How to Settle Guardianship
When the petition for guardianship is filed, the court schedules a hearing. In Louisiana, the general rule is that a hearing cannot take place for at least seven days after the petition is filed. However, it can take significantly longer, sometimes of months or even years, before the matter is resolved; in some cases, especially where a family dispute exists, the matter is settled only after trial.
The petitioner then has to serve the alleged incapacitated person and all the involved parties, or file an affidavit with the petition that the persons who need to be served are not available. If no one objects to the petition, a judgment will be issued naming the appointed guardian. If people do object, these objections will be considered at the hearing, and the judge will hear testimony from all parties as well as review any relevant evidence. Forms are not required in these hearings, but having the necessary paperwork filled out in advance can help facilitate the process. Since the testimony and evidence presented is all taken under oath, all parties involved in the hearing must be present. Certain situations do allow a guardian to appear on behalf of the alleged incapacitated person when necessary. For instance, if the alleged incapacitated person resides in a nursing home, the director of the nursing home has the right to appear at the hearing as long as the court is notified of his appointment in a timely manner. The judge may also appoint an attorney to the case, and this attorney will ask questions of the witnesses and examine the evidence on behalf of the alleged incapacitated person. If no guardian is already in place, the judge might appoint a temporary guardian until the hearing can take place.
The judge will evaluate the reports made by the court-appointed physician, the mental disability evaluator, or other necessary experts. If the judge believes that a guardian should be assigned to the alleged incapacitated person, he or she will issue an order as quickly as possible.
Legal Guardian Legal Rights and Obligations
The rights, duties, and powers of a legal guardian are found in the Louisiana Civil Code. The power to act as a legal guardian is not necessary a power of zero sum. For the purpose of this post, I am going to address the rights and responsibilities of the guardianship and not the power of attorney, which is different.
RIGHTS: A. Powers of Guardian: A guardian may be granted all of the powers over the ward and the ward’s estate that are allowed by law and that are considered necessary and proper to perform the duties of the guardianship. The guardian may not dispose of property of the ward unless so authorized by the court. B. Powers of Guardian of a Minor: In addition to the powers provided in Paragraph A, the court may grant a guardian of a minor the power: 1. To consent to marriage or to any procedure to achieve sterilization; 2. To consent to an operation for altering the ward’s appearance. 3. To make some educational or occupational decisions returning to college 4. To consent to the issuance of a passport.
DUTIES: A. Duties of Guardian Generally: Unless authority is given to act otherwise by the order of the court or pursuant to a properly executed power of attorney , a guardian shall have custody of the ward and his estate and shall act as and perform the duties of the legal representative of the ward.
B. Duties of Guardian of Minor: The duties of the guardian of a minor include the duties of the guardian generally provided in Article 449, the duty to ensure that the ward receives school instruction as provided by law, and the duty to provide for the ward’s care, comfort, and maintenance.
C. Duty of a Legal Guardian of an Adult: The duties and obligations of a guardian of an adult include the duty of the guardian to exercise diligence in the care, control, and preservation of the ward’s estate; and the duty to exercise powers and functions as the court may grant. D. Accounting: A. A guardian is required to render accountings, as none are imposed under Louisiana law. When a formal account is rendered it is then audited by the civil court. Requiring an accounting outside of the court system can be costly because there will be tax returns involved.
How to End Legal Guardianship
Any parent may decide to end the legal guardianship of a child to whom the physical custody is given to another person. The termination of guardianship of a person ends the guardian’s detail by law, and it permits the parent to return to the situation of the legal guardian of the child.
In addition, guardianship terminates as a matter of law when a seventeen year old becomes eighteen years of age. At this time, the ward assumes the power fully over his own affairs, and he is an adult in the eyes of the law.
Legal guardianship ends also by the death of either the ward or guardian. The death of one or the other terminates the guardianship for the other. But there is an exception to this rule for the case in which both the ward and the guardian are exposed to a common risk of death, as in dangerous relations at sea.
Guardianship may also be terminated by the resignation of the guardian. Resignation may occur by the guardian voluntarily giving notice that he/she resigns from the position. The resignation requires court approval.
In addition, the court may terminate the guardianship of the juvenile if it is in the best interest of the child or incompetent person. For example, the court may terminate the guardianship and remove the guardian due to a change in the circumstances of the guardian or ward. The court may remove the legal guardian if the guardian is no longer competent to perform the duties of the guardian due to incapacity or otherwise. The court may terminate the right to appoint a successor if the appointment was granted to a guardian who has died or is removed. It is not required that relatives be given the preference in matters of guardianship.
Commonly Asked Questions
Q: Can anyone apply for legal guardianship for a person living with a disability in Louisiana?
A: No, the petitioner for guardianship must meet certain qualifications stipulated by Louisiana law and obtain a legal representation to file on their behalf. It is also critical for the petitioner to explore informal options for assistance before pursuing guardianship.
Q: Will the court always appoint the proposed guardian as the legal guardian of a person with disability?
A: Not necessarily, if the proposed guardian does not meet the legal requirements or the court believes that a different appointment better serves the interests of the person with disability.
Q: Will the court seek the input of the person with disability in establishing a legal guardianship?
A: The court will seek these opinions by and large for persons over the age of fourteen at the time of appointment. The opinions of those with less than fourteen years of age are not considered except for rare exceptions.
Q: If I am appointed a legal guardian for a minor child, does that mean I affirm full legal and personal control over the child?
A: No, a legal guardianship for a minor does not imply total control over the child . The court does not allow for minors to be exploited by a guardian or any other party. The guardianship can only be used to foster the personal and financial well-being of the minor child. Failure to do so can result in criminal charges against the guardian.
Q: When a parent seeks legal guardianship over a minor child, does that include custody of the child?
A: No, while a legal guardianship of a minor child may involve similar duties as establishing permanent custody arrangements, the two are not entirely equivalent. An attorney experienced in family law is needed to ensure that the particulars of the court order are correct.
Q: Does a legal guardianship expire when the person with disability reaches a certain age or a particular time period?
A: Not usually but it can. There are some circumstances in which the court may have it terminate at an early date, but clause to do so must be included in the court order otherwise the guardianship remains in effect until modified or terminated by the court.