How to change legal guardianship

There are different options to add/remove/change guardians depending on the situation. Read on for more information about how to ask the court to change the guardian.

Different Ways to Change Guardians

There are a few different options to change the guardian on the case.

  1. Someone might want to be a co-guardian with the current guardian, or be a replacement guardian if the current guardian is unable to continue. The person who wants to be the new guardian would file a Petition for Appointment of Successor/Co-Guardian.
  2. The guardian can voluntarily resign if they no longer want to be the guardian. The court will have to choose a replacement guardian, and may appoint the public guardian if no one else is willing to be appointed. The guardian can file a Petition to Resign if this is the case.
  3. The guardian can be involuntarily removed if someone believes they are no longer capable or suited to be the guardian. Anyone can file a Petition for Removal if this is the case.

All of the options are explained in more detail below.

Adding a Co-Guardian or Replacing a Guardian

If there is already a court-ordered guardianship but someone else wants to be appointed the guardian, either as a replacement guardian or a co-guardian to help the current guardian, the person can file a Petition for Appointment of Successor/Co-Guardian. A successor guardian is someone who takes over for the current guardian, and a co-guardian is someone who is appointed to share in the duties of the current guardian.

To ask to be appointed a co-guardian or a successor guardian, download the following packet and follow all of the instructions included.

Resignation

If a guardian does not want to be the guardian anymore, the guardian can petition the court to resign. The guardian must explain why he or she no longer wants to be the guardian. The judge will have to select a new guardian to take over. If there is already someone who wants to take over as guardian, use the Petition for Appointment of Successor/Co-Guardian (above) instead since it takes care of the resignation and appointment of a new guardian in one set of forms.

To ask the court to resign, download the following packet and follow all of the instructions included.

Removal of a Guardian

If a guardian is failing in their duties, or cannot voluntarily resign for any reason, another person can petition the court to have the guardian removed. The person will have to explain why the guardian is no longer able to serve anymore. If there is already someone who wants to take over as guardian, use the Petition for Appointment of Successor/Co-Guardian (above) instead since it takes care of the removal and appointment of new guardian in one set of forms.

To ask the court to remove the existing guardian, download the following packet and follow all of the instructions included.

Some people need help managing their daily affairs because of their age, a disease or an injury. If this happens, a court of law may appoint a guardian for them.

Guardian and ward are legal terms used to indicate the relationship between someone who protects another (the guardian) and the person being protected (the ward). In Texas, the process to appoint a guardian includes:

  • Filing an application with a court
  • Having a hearing before a judge
  • Having a judge appoint a guardian, if one is needed

Because having a guardian takes away a person’s rights, it should be the last and the best choice to protect someone. Before asking a court to appoint a guardian, other options are usually tried first, such as:

  • Finding someone to help the person pay bills and manage money
  • Finding someone to help the person make decisions, including health care decisions
  • Enrolling the person in available community services, including Medicaid programs

Once a guardian is appointed, it often becomes permanent. However, if things change significantly, a judge can decide a guardian no longer is needed.

To learn more about the guardianship process in Texas, read A Texas Guide to Adult Guardianship.

HHS Guardianship Services Program

The Texas Health and Human Services (HHS) has a Guardianship Services Program and becomes involved in guardianship in one of two ways:

  • The Texas Department of Family and Protective Services (DFPS) refers adults or youth aging out of conservatorship to HHS that they think need a guardian.
  • In certain limited circumstances, the court directly requests HHS to be a guardian.

For adults to be referred to HHS for guardianship, they must either have a disability, or be 65 or older, and a victim of abuse, neglect (including self-neglect) or exploitation.

For youth aging out to be referred to HHS for guardianship, they must be in Child Protective Services (CPS) conservatorship and appear to meet the adult definition of incapacity.

To change the guardianship of a child, you will need to file a petition with the court in the city or county where the child resides currently. Along with the petition, you should file evidence to back up your reasons for changing guardianship and provide written consents from the child’s current guardians. Once you have provided the court with these documents, a judge will review the case and make a determination on what guardianship arrangement will be in the best interest of the child.

Step 1

Prepare a petition for guardianship. To have the court consider transferring legal guardianship, you will need to draft a petition pursuant to your state’s child custody laws. The petition should list the child’s full name, date of birth and place of residence, along with demographic information on the child’s parents, current guardian and proposed legal guardian.

Step 2

List the reasons for changing guardianship. Because a change in guardians and living arrangements can be difficult on a child psychologically, the court may not approve the petition unless you provide compelling reasons why the new custody arrangement is in the child’s best interest.

Step 3

Obtain signed consents from the child’s current legal guardians. If the child’s parents and current guardian agree to the change in guardianship, they will need to execute a document that states that they are in agreement with the proposed arrangement. If they wish for a temporary change in guardianship only, they should state the date they wish for the guardianship arrangement to remain in place. The parents and guardians should sign and date the documents in front of a notary public.

Step 4

Submit the petition and supporting consents to the Clerk of the Court. After the court has reviewed the documents, you will be assigned a hearing date. All pertinent parties, including the child, will need to attend the hearing.

Step 5

Show that the new guardian is capable of caring for the child. The court may ask the proposed guardian to show evidence establishing that she is fit to care for the child. She may be asked to complete a background check, show proof of income and have a home study completed by a state social worker.

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Guardianship is when one person makes decisions for another person who can’t make decisions for themselves. A judge creates a guardianship when someone files a petition . If someone wants to end or change the guardianship, a judge also needs to be involved in that.

There can be several reasons for someone wanting to change or end a guardianship:

  • The guardian can no longer be a guardian due to death, relocation, or other reasons;
  • The guardian fails to do their job as a guardian by either not doing anything or making bad decisions;
  • The person who has the guardian no longer needs the guardian or doesn’t need the guardian to do as much.

If you want to change or end a guardianship, you will have to file a petition with the court where the guardianship was started. You must be the person who has the guardian, a family member, or some other interested person. This means the guardianship has to affect you in some way.

The person who will become your guardian must complete a training program before the judge approves your petition.

The judge will read the petition, hold a hearing , and make a decision. They might change the current guardianship, end it, or do nothing. They might also appoint a successor guardian. This is a guardian who takes over for someone else.

If you want to file a petition to end or change a guardianship, contact the circuit clerk in your county to find out what the process is for modification of guardianship agreement.

Guardianship is when a court orders someone other than the child’s parent to:

  • Have custody of the child; or
  • Manage the child’s property (called “estate”); or
  • Both.

The information in this section is about probate guardianships. These cases are brought by the person seeking to be appointed guardian or by someone else in the family asking the court to appoint a guardian. If custody of the minor was awarded to a non-parent through the juvenile dependency court, this section does NOT apply.

A probate guardianship of the person is set up because a child is living with an adult who is not the child’s parent, and the adult needs a court order to make decisions on behalf of the child. Generally, probate guardianships are for children under 18. In the case of immigrant youth who are seeking special immigrant juvenile status, the law allows a guardianship of the person to be requested (or extended) for a young person who is already 18 but still under 21. Click to find out how.

A guardianship is not the same as an adoption. Here are some differences:

In a Guardianship:

In an Adoption:

  • Parents still have parental rights. They can ask for reasonable contact with the child.
  • The court can end a guardianship if the parents become able to take care of the child.
  • Guardians can be supervised by the court.
  • The parents’ rights are permanently ended.
  • The legal relationship with the adoptive parents is permanent and is exactly the same as a birth family.
  • An adopted child inherits from his or her adoptive parents, just as a birth child would.
  • Adoptive families are not supervised by the court.

Types of probate guardianship

There are 2 types of probate guardianship:

Guardianship of the person

In a guardianship of the person, the guardian has the same responsibilities to care for the child as a parent would. That means the guardian has full legal and physical custody of the child and can make all the decisions about the physical care of the child that a parent would make. A guardian can be anyone: relatives, friends of the family, or other people suitable to raise the child can ask to be legal guardians.

The guardian is responsible for the child’s care, including the child’s:

  • Food, clothing and shelter
  • Safety and protection
  • Physical and emotional growth
  • Medical and dental care
  • Education and any special needs

The guardian is also be responsible for supervision of the child and may be liable for any intentional damage the child may cause.

A guardianship of the person is sometimes needed when, no matter how much parents love their child, they are not able to parent.

Maybe 1 or both parents:

  • Have a serious physical or mental illness;
  • Are in the military and have to go overseas;
  • Have to go to a rehab program for a while;
  • Are going to jail for a while;
  • Have a drug or alcohol abuse problem;
  • Have a history of being abusive; or
  • Cannot take care of their child for some other reason.

The court will look at what is in the best interest of the child to make sure the child is raised in a safe, stable, and loving environment. A legal guardian can care for a child when the parents are unable to.

Guardianship of the estate

A guardianship of the estate is set up to manage a child’s income, money, or other property until the child turns 18. A child may need a guardian of the estate if he or she inherits money or assets. In most cases, the court appoints the surviving parent to be the guardian of the child’s estate.

In some cases the same person can be the guardian of the person and of the estate. In other cases, the court will appoint 2 different people.

The guardian of the estate must:

  • Manage the child’s money;
  • Make smart investments; and
  • Manage the child’s property carefully.

A guardianship of the estate is created to manage a child’s property.
It is needed when:

  • The child owns or receives valuable property, like if a child inherited a house or a large amount of money.

A guardianship of the estate is not needed when:

  • A child only owns inexpensive toys and clothing; or
  • The child receives social security benefits or TANF/CalWorks (welfare).

If you are not sure if a guardianship of the estate is needed, talk to a lawyer. Click for help finding a lawyer.

IMPORTANT: If a guardianship of the estate is needed, it is best to use a lawyer to set it up, and to represent the guardian of the estate. This is because the fiduciary duty (this is the highest duty the law recognizes) owed by the guardian to the child requires that all the laws and rules be followed, and that the child’s assets (property) be protected. A lawyer can make sure that the guardian of the estate does everything correctly. The lawyer’s fees are paid from the estate and must be approved by the court so there is protection for the child.

How to change legal guardianshipHow to Change a Minnesota Guardianship

It may feel like your guardianship will last forever. However, on the contrary, there’s a bit of finiteness to your role that you may not have realized. Minnesota guardianship law says that someone can try to petition for your removal as a guardian for any good reason.

Whether they succeed or don’t succeed lies in the judgment of the court. You, in a separate circumstance, might not want to be in your role or feel that you’re able to fill your role any longer. If you’re wondering what might cause your guardianship to end or how you can leave the position, consider the following.

No Longer Fulfil Your Role

Just because you were able to be someone’s guardian doesn’t mean that you can be their guardian forever. Maybe you need to find a new job or there are family matters that are taking up your time. Either way, you can have someone else step into your role so that you can have more free time to focus on other matters. Perhaps, otherwise, you’re no longer physically able to do everything that you once could. Someone can become your successor guardian in case you can no longer fulfill your role.

While your guardianship will terminate automatically upon your passing, you’re not being forced to be a guardian for the rest of your life. It will probably mean dealing with a little bit of legal paperwork and having the court appoint someone else.

The court has to release you from your role before you can go free, and they’ll probably want someone else to take on the role for you. Realize that if you’re not there to do your duties for your ward, your ward will need someone else to carry out those tasks still. Your ward may not be able to do everything on their own, as evidenced by the fact that you were helping make their decisions.

Their Best Interest – Changes

The truth is that you’re not completely in control. That’s especially true when someone thinks that it’s best for you not to be your ward’s guardian anymore. Conservators also face this concern as well because there have to be checks and balances to ensure everything goes okay.

The party who doesn’t want you to have any more power as a guardian will probably have to petition the matter, and the court will also have to side with them before anything really serious happens.

You should also be aware that someone can petition your removal because they have a good reason to. Their goal may not be in the best interest of the ward directly, but there might be another reason that still brings about your termination. Being on your best behavior is a must if you don’t want this to happen. As far as you’re concerned, any mistake that you make can and will be held against you.

Will Trouble

For both spousal and parental appointments as guardians, there can be some potential issues that arise. They can work out as long as everything is done properly, but you need to be aware of how probate law impacts the situation. It’s completely possible that your ward may have wanted you to be their guardian, but if something goes awry during formal probate, causing the will to be denied, consider the guardianship terminated. This can even happen in cases where the will was originally informally probated, but was later reviewed during formal probate and was denied as a result.

That said, if you’re appointed as someone’s guardian in a will or looking to appoint someone as your guardian, that will should be foolproof. If that’s the only document that’s involved, it’s your only hope. Executors are usually the ones who need to memorize the will, but you should, too. If an executor is involved, consider talking to them about the matter. You may even want to go so far as to talk to your ward-to-be if they’re not incapacitated and can still modify the will in question.

More Appointments

The court has a lot of power in this circumstance. They can appoint more guardians and conservators whenever they feel like it’s necessary. If they want someone else there to do the job, it’s really not up to you. Another guardian can be appointed to start in their role immediately. You may not like that and you may feel envious, but it’s not ultimately up to you who fills in the role of a guardian. The law is rather open about when courts can pick out a new guardian to step in.

Vacancy is normally the thing that prompts the court to appoint a new guardian. If the court says that they think someone else needs to be brought in, they probably feel that the job isn’t getting done. They’re probably going to fill any vacancy, believing that the ward is still in a state that warrants external help. Nonetheless, the person who will be asked to be a new guardian might only have about thirty days to file an acceptance of appointment. So, that will give them about a month to start their new job.

Minnesota Guardianship Lawyers

Deciding whether or not you’ll be a guardian to your ward for much longer may not be up to you. You may or may not like the sound of that. But here’s a suggestion for you. Dial 612-424-0398 and get in contact with a guardianship lawyer from Flanders Law Firm LLC.

The situation probably won’t be settled until the court has their say in the matter. So, take the extra steps to either move forward or to try and prevent things from happening. What you should be looking out for is the very best for your ward. And if that means having you serve as their guardian, that might mean figuring out how to resolve the situation.

Supplemental Security Income (SSI) is a program to help meet the basic needs of those who are disabled, elderly or blind, and who have limited resources and income. In cases where the recipient is under 18, has a disability which would prevent him from managing his own finances, or is otherwise deemed unable to handle managing his SSI benefits by the Social Security Administration (SSA), a representative payee may be named. The payee can be an individual — usually a relative or other interested person — an institution such as a nursing home, or some other type of facility or organization tasked with taking care of the SSI recipient's well-being.

At any time, the SSI recipient or the payee representative may ask for the payee representative to be replaced. If such a request is made by either party, the SSA will investigate the situation and make a determination.

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Differences between Payees and Guardians

The representative payee is not a legal guardian in the sense that she has power of attorney in all of the recipient's affairs, though she could under a separate legal determination. In many cases, the payee is not even an individual, per se. Whether a person or an organization, the representative is charged only with making sure that the resources received from SSI are used in the best interests of the person receiving benefits, and that anything not spent on the SSI recipient is saved for her in a savings or similar account.

If You are the Representative Payee

Being a representative payee is a lot of responsibility. If you are no longer willing or able to be a representative payee, you must inform the SSA at once. You should have already received the case worker's contact information when you became the payee. Contact him and let him know you are no longer able to be a representative payee. You will also need to immediately return any of the SSI recipient's benefits, including cash and any interest paid in her savings account, to the SSA representative so the SSA can entrust those funds to a different payee. If you are not sure who the representative is, contact your local SSA office and it will be able to get that information for you.

All states have laws providing for the appointment of a guardian to care for a minor child when the child’s biological mother is unable to do so and the father is also unable or unavailable. The guardian is appointed by court order and is subject to court supervision. Although the mother may nominate a particular adult to act as guardian for her child, the court makes the final decision on who is appointed. Any change in the guardianship must also be done through the court.

Guardianship vs. Parental Rights

A mother or other concerned adult may petition the court for appointment of a guardian for her minor child; however, the establishment of a guardianship does not terminate the mother’s parental rights. In situations where she cannot care for her child, perhaps due to incarceration, drug addiction or other serious illness, a guardian assumes responsibility for providing the child’s day-to-day needs, schooling and necessary medical care. The mother’s parental rights remain intact and co-exist with the guardian’s duty to care for the child. For example, the mother is entitled to reasonable contact with the child during the guardianship.

Guardian Power and Duties

State law specifies what powers the court may grant to the guardian over a minor child. For example, Section 524.5-313 of the Minnesota Statutes states that the guardian’s powers include deciding where the child will reside; ensuring that the child’s personal comfort and needs are met for food, shelter and clothing; consenting to medical service for the child; and deciding the type of education the child will receive. State law further requires that guardians make periodic filings with the court. In California, for example, the court mails a Guardianship Status Report annually to every guardian, and this form must be filled out and returned to the court. Additional filings may be necessary if the guardian is handling money received for the child’s benefit, such as public assistance.

Change of Guardian

A child’s guardian can only be changed by court order. The child’s biological mother may petition the court for a change; but the petition must affirm that the current guardian is not adequately caring for the child or has failed to comply with the court’s reporting requirements. For example, Minnesota law provides for appointment of a temporary, substitute guardian but only on a showing that the child’s welfare requires immediate action that the guardian is failing to address. A California court may remove a guardian who fails to return the annual Guardianship Status Report.

Alternatives to Guardianship

In some situations, a mother may be able to choose an alternative to a formal guardianship that gives another adult the right to care for the child but also gives the mother the right to remove or change the caretaker as desired. California law permits the making of a Caregiver’s Authorization Affidavit that gives another relative of the child or licensed foster parent the right to care for the minor without the need to go to court. The state provides a pre-printed form that contains the statutory language. Because guardianship laws vary by state, a mother desiring to use such an alternative must check the laws of the state in which she resides (see Resources).