A Guardian is an individual appointed by the Probate Court to make decisions regarding the personal and physical well being of an adult determined to be a Legally Incapacitated Individual or an Individual with a Developmental Disability. A Guardian may also be appointed to provide for the personal and physical well being of a minor child. A prospective Guardian is nominated either by a petition filed with the Probate Court, or named in a will.
Each "type" of guardianship requires the Probate Court to make specific findings, which must be set out in the petition for appointment. Please review the information provided in this section to ensure you are filing the appropriate petition.
Legally Incapacitated Adult
An Adult is considered a Legally Incapacitated Individual (LII) when the individual lacks sufficient understanding or capacity to make or communicate informed decisions about his or her personal well-being because of impairment by reason of either;
• Mental Illness
• Mental deficiency
• Physical Illness
• Physical Disability
• Chronic use of drugs
• Chronic intoxication
A prospective Guardian may be nominated by a Petition filed with Probate Court or named in a will. Any person concerned about the welfare of the LII, including the LII themselves.
There are two types of guardianships involving minors: "Full" and "Limited." A Petition for appointment of a "Full" guardian of a minor may be made by a person interested in the welfare of the minor, or the minor themselves. However, a petition for appointment of a "Limited" guardian of a minor must be made by the minor's parent(s). Please review the following information carefully to determine which type of guardianship would best serve your needs.
Full Guardianship of a Minor
A "Full" Guardian of a minor may be appointed only in three instances:
1. The minor is unmarried and the rights of both parents have been terminated or suspended by any of the following:
o Prior court order
o Judgment of Divorce or Separate Maintenance
o Mental incompetence as determined by the court
o Confinement in a place of detention; OR
2. When the parent(s) have permitted the minor to reside with another person, but have not provided that other person with the legal authority for the care and maintenance of the minor; OR
3. All of the following:
o The minor’s biological parents have never been married to one another; AND
o The minor’s parent who has custody dies or is missing and the other parent has not been granted legal custody under court order; AND
o The person whom the petition asks to be appointed guardian is related to the minor within the fifth degree by marriage, blood or adoption.
Limited Guardianship of a Minor
A "Limited" Guardian of a minor can be done at any time for any reason if all of the following exist:
1. The custodial parent(s) consent to the appointment of a limited guardian; AND
2. The custodial parent(s) voluntarily agree to suspend parental rights; AND
3. The Probate Court approves a Limited Guardianship Placement Plan agreed to by both the custodial parent(s) and proposed guardian(s).