**Overview of Legal Guardianship**
A legal guardian is generally a person or organization appointed by the court to be legally responsible for a child whose parents are unable to care for them on a temporary or permanent basis. Legal guardianship bestows upon the guardian the full range of parental responsibilities, which are also known as ‘parental rights and duties’ or ‘caretaking.’ The guardian is expected to treat the child or children for whom they are responsible as if they were their own.
Federally and state-run foster care systems provide children temporary or long-term living arrangements until it is safe or appropriate to reunite them with their parents or grant them the opportunity for adoption . Virgin Islands courts generally prioritize placing children with relatives and friends over foster parents or institutional living situations. But foster care and legal guardianship are not synonymous. A foster parent might technically be a legal guardian, however, guardianship of children extends beyond placement in family settings or institutions. It also requires the guardian to make certain medical, education, and other important decisions on behalf of the child.
**Are a Brother or Sister Legally Eligible to Be a Guardian?**
In most jurisdictions, an individual requesting to be named legal guardian over the person or property of a minor child must be at least 18 years of age and otherwise eligible under applicable state law. The courts also consider the relationship of the potential guardian to the child in question. A sibling is often given preference by the court as a guardian based on the sibling relationship. This can be true even if the sibling is a minor. In such cases, the court may appoint a guardian ad litem to assist the court in the determination of whether the age of a minor guardian will be to the benefit of the minor child.
The guardian must also be financially stable to care for the child and provide for their needs. The guardian must be a resident of the state, at least for six months prior to the petition for guardianship. A guardian residing in another state may be appointed, but the court must have jurisdiction over the minor. By law, the minor is a resident or domiciliary of the state in which he or she is present. Full-time residence or education during most of the year in the state in which guardianship is sought generally permits the court to adjudicate the minor’s status by probate notice and to appoint a guardian of the person and estate.
**Process for a Brother or Sister as Legal Guardian**
The legal process for a sibling to become a guardian for an adult sibling involves several essential steps. While the specific procedures can vary by jurisdiction, generally speaking, a sibling first needs to file a petition with the state’s probate or family court, seeking to be appointed as a guardian.
In this petition, the sibling must demonstrate that they are in the best legal position to care for their disabled sibling. Beyond this, you also need to identify why the disabled sibling is not capable of caring for themselves. In many cases, a letter from a doctor attesting to the individual’s cognitive and physical limitations may suffice.
A basic form of the petition for guardianship varies from state to state. In Florida, for instance, the initial section of the form requires the filing of a "Disability Verified Statement." In Georgia, the form is available directly on the court’s website. In general, the petition will require the completing of various details regarding the desired roles of the guardian and the alleged incapacitated person.
After the petition is filed, the court will schedule a hearing, generally within 30 days after the filing. The court will carefully review the application and determine whether or not a third-party guardian ad litem should be appointed. These guardians ad litem may be recommended by the court or appointed by local companies certified in the area of guardian ad litem services. Notably, independent guardians ad litem will assess the circumstances of the alleged incapacitated person and make recommendations to the court regarding the appropriateness of appointing a guardian.
The attorney for a sibling guardian may also file a motion to compel the medical and financial records of the alleged incapacitated individual. In many cases, this medical and financial information will be sent to the attorneys rather than the sibling guardian. Both the sibling and the sibling’s attorney may also be required to file reports regarding the status of an alleged incapacitated person with the probate/family court. These reports are necessary to verify that the sibling is capable of responsibly carrying out their duties.
While the majority of guardianship proceedings are relatively straightforward, some limitations may exist, in which a court may decline to grant siblings a guardianship. Often, appointing a sibling as a guardian is simpler than seeking other guardians, such as grandparents. In addition to meeting competency and capability tests, siblings will generally have less of a hassle securing bonded guardianship than would a grandparent or other relative.
**Rights and Duties of a Brother or Sister Guardian**
To have the ability to make decisions about things like education, health care, service purchases, and social activities for someone with a disability is a huge responsibility. Having legal authority to act can also be a real blessing. After all, if you have had a sibling with a disability for many years, you most likely know exactly what services and supports will be in that sibling’s best interest. You should not have to involve your brother or sister’s friends, neighbors or strangers on the Community Board when making decisions, since no one knows your sibling as well as you do.
The law has something to say about how things should go and your right (or obligation) to make your brother or sister’s decisions for him or her. Being a legal guardian is a responsibility that all parents hope to leave to their older children.
The legal process is called a "guardianship" and it can involve many different options. At its most basic level, the guardianship law bestows on the guardian all of the rights, powers and duties that a parent would have for a child. Essentially, the judge puts the same controls into place as if you were the parent. This is called a "guardian of the person and property" or "full guardianship." In such a case, you need to make all of the decisions about your sibling’s health care, schooling, where to live and how all of that should be funded.
If your sibling is over age 18, you will have to show that he or she has a disability that prevents him or her from making his or her own decisions. You will also have to show the court that you are the best person to make those decisions for your sibling. The guardian must prepare an "Article 17A" petition, then present it before a judge who decides whether to grant the guardianship, and if so, to what extent. See our post on "Guardianship in New York for People Over Age 18." A guardianship award ends when the sibling dies, but can be lifted or changed by the court at any time.
In addition to the full guardianship, there are other options that are more limited, and less costly than going to court for a full guardianship. Such options might include:
Additional rights and responsibilities are donated by the court and authorized for your use by the Judge. These orders give you some specific and limited steers by which you may drive.
Once guardianship is awarded to a parent or sibling, that person must act in what is called as "fiduciary" capacity. This means that you must act in good faith and exercise care and diligence as if the person with a disability were a child. Full legal authority comes with responsibility and should only be done with the full understanding and belief that the authority is being used in your sibling’s best interests. Just like parents shouldn’t use their parental rights to harm a child or take his or her property away from them, you shouldn’t do anything bad with your legal authority as a guardian either. Responsibility and authority go hand in hand.
**Considerations and Common Hurdles**
Navigating the complexities of becoming a legal guardian for a sibling can present unique challenges. While the law generally affords priority to siblings when determining the person best suited to be the legal guardian of an individual with a disability, that does not mean that the roadmap is straightforward or linear. Many considerations come into play for a sibling who wishes to become the legal guardian of a person with a disability, and these may include emotional, financial and social factors. Not everyone is cut out to be a caregiver or a legal guardian, and assuming that role in the context of familial relationships can sometimes make the situation even more difficult. For many families, the dynamics between the legal guardian and the person with a disability can have a profound impact on the interpersonal relationships and could forever alter the family structure. In some cases there is room for everyone to adjust and accept their new roles, but for others, the transition to a new term of art ending with the word "ry" is more difficult. It is valuable to keep these potential hiccups at the forefront of your mind when embarking on the process of applying for guardianship.
Additionally, the actual entering of the legal guardianship can be much more trying than one may have imagined. The Court process often entails dealing with a number of healthcare professionals who might have differing opinions about the need for a guardian. It further involves advocates pushing back against the idea of legal guardianship in certain situations. At times, a family may find themselves in a public battle regarding the need for guardianship, and this can be especially challenging in the context of family relationships. It is important to be aware of these potential struggles up-front.
There may also be financial considerations , particularly if there are assets involved in your case. Guardian compensation rates, both for personal compensation and for payment to companies serving as legal guardians, are packaged into the State budget. As a result, those packages may be adjusted based on what the legislature deems appropriate in the budget as a whole. In other words, while you may be entitled to full compensation under the law, you may not actually see the amount you are owed once the budget has been approved. In the past years, the compensation provided by the State to private guardians has fallen short of what was deemed appropriate under the law, resulting in unpaid wages for those serving as guardians.
Another consideration to keep in mind if the person you are seeking to appoint as a legal guardian is receiving government benefits is the impact a guardianship can have on their public benefits. Many families are unaware of the consequences that a legal guardianship can have on a person’s Medicaid Waiver service plan, and it is critical to ensure that the legal guardian is not creating a barrier to services by enforcing restrictions that do not apply outside of the legal setting.
For students, the impact of legal guardianship on a person’s transition from school to adult services is also an area in which misunderstanding can often lead to messy outcomes. Some schools have very specific protocols they require for parents to follow, and misunderstanding the rules can result in losing services or being denied school diplomas even when the child fulfills their requirements for graduation.
These concerns, among others, should be reviewed before moving forward with filing for legal guardianship. If you have questions regarding this process, please contact us at [email protected] for more information and to connect with an attorney who can help you.
**Examples and Illustrations**
To better illustrate the points made throughout the article, let’s take a look at a few case studies where siblings have successfully become legal guardians of their brother or sister. In one case, a 27-year-old male with a mental disability was placed in the guardianship of his brother after their parents passed away. The younger brother, who was 21 at the time, had lived with his sibling for two years, and services had been in place to help them adjust to living alone. In this case, the older brother enjoyed an independent lifestyle. The younger sibling had the ability to work and participate in group activities and social events outside the home. The brothers lived together within a supportive community where neighbors helped one another with various tasks. The family was happy to remain together and to continue to receive the needed services. In a another example, two sisters became the legal guardians of their ambitious younger brother after he experienced severe complications from an unexpected medical condition. While the 19-year-old had previously lived independently, he fell into a coma, requiring siblings to make life-and-death decisions as well as long-term care plans. They acted quickly to obtain guardianship while medical professionals continued to provide necessary care. Through the sisters’ efforts, their brother was able to survive, and he is now undergoing physical therapy to regain the ability to walk and talk. These case studies are just examples of the many instances where siblings find themselves thrust into making difficult decisions when their brothers or sisters can no longer care for themselves. While it may seem like guardianship provides nothing more than allowing certain legal rights, the vast array of issues that can fall under the aegis of a guardian provides some real-life experiences that can make death and disability planning a necessity.
**Legal Information and Guidance**
When considering guardianship, you may want to speak with a legal aid organization that specializes in family law issues. Legal aid may be able to help you or walk you through your responsibilities and any complicated legal issues, depending on your state of residence.
If you do not qualify for legal aid and need to hire an attorney, try finding a family law attorney in your area who has experience handling guardianship cases . If you are not in the market for hiring an attorney, it is still a good idea to do some research to learn more about how guardianship works so you know what to expect.
Nonprofit organizations focused on families may also have resources you can access. Check the website of local organizations and national organizations like Easter Seals, the American Academy of Pediatrics, the National Foster Parent Association, and the National Alliance for the Mentally Ill.