What is a Guardianship?

Guardianship is a legal arrangement that allows one party—whether that be a concerned individual, a lawyer, or even an organization—to make personal and legal decisions on behalf of an individual who is not otherwise fully capable of doing so himself or herself.

Guardianships in RI can be for a limited purposes, for instance only related to financial Issues, or they can be broad enough to effectively make all decisions, (financial, medical and social) relative to a persons day to day life.

There are two forms of guardianship: guardianship of adults and guardianship of minors. Each has their own requirements and process for approval.

Guardianship of Adults

Under RI law, any concerned individual—or corporate party, for that matter—may apply to their local Probate Court, to be the guardian of an adult, (the ward) ,who fits the criteria of an “incapacitated person” and whose decision making is significantly affected by a diagnosed medical condition. For example, a proposed wards decision making could be limited based upon to following:

  • a severe intellectual disability (an IQ of about 70)
  • a severe traumatic brain injury (TBI)
  • severe mental illness
  • cognitive decline of a spouse due to Alzheimer’s
  • The 18th birthday of a disabled child

The goal of the court, in reviewing a petitioner’s application for guardianship, is to ensure that the rights of the ward (person under guardianship) are protected and that the ward will enjoy the fullest extent of freedom while being protected. The court will seek to find and enforce the most independent living situation possible for the respondent, seeking to prevent the abuse of the respondent or the respondent’s assets.

Guardianship of Minors

When a minor’ parents are both deceased, the local Probate court may assign a guardianship of that minor. The petitioner for guardianship of a minor need not be related, though often it is relatives who petition. The court will review the petition to make sure that the potential guardian is a safe and nurturing caretaker for the minor. Precautions are also put in place to protect the minor’s assets from exploitation as well.

If a child is involved with the RI DCYF, and both parents to be declared unfit by reason of abuse or neglect, the Court may fashion a resolution whereby the parties agree to a guardianship, so that the foster parents have legal standing to make important and day to day decisions for a child. This type of Guardianship is granted by the Family Court and not the Local Probate Court.

If you have a loved one in need of guardianship, or who may need guardianship in the future, call our office today to discuss your options and to help prepare your petition.