Guardianships for the Mentally Retarded

Adults with mental retardation who are totally or partially unable to meet essential requirements for their physical health or safety, or who are unable to make informed decisions that affect their care, should have a guardian who is appointed by and supervised by the probate court. The guardian’s duty is to monitor the care of this person. The guardian can be any adult, an authorized state official, or a private non-profit organization suited to this task.

Plenary, Limited and Standby Guardians

A plenary guardian is an individual, a legally authorized state official, or a private non-profit corporation appointed by the probate court to oversee “all aspects of the care of an adult person who, by reason of the severity of his or her mental retardation, is totally unable to meet essential requirements for his or her physical health or safety and totally unable to make informed decisions about matters related to his or her care.”

The limited guardian of an adult with mental retardation oversees only “certain specified aspects” of that person’s care because the probate court has found that “the person with mental retardation is able to meet some, but not all, of the essential requirements for his or her physical health or safety, and is able to make some, but not all, of the decisions about matters related to his or her care.”

A standby guardian is simply a designated individual who could assume the role of plenary or limited guardian should the need arise.

The Appointment of Guardianship

The guardianship application must be filed in the probate court. A hearing is held within 45 days, and the individual must be notified of the time and place of the hearing at least seven days in advance.

At this hearing, an Assessment Team Evaluation form completed by a three-member assessment team from the Department of Mental Retardation must be presented. If the probate court finds clear and convincing evidence that the individual of concern meets the required description of an adult with mental retardation, either a plenary or limited guardian shall be appointed, based upon the needs of the individual.

Guardianships for Minors

A guardian is identified as an adult who has the legal right and duty to take care of a minor or to manage a minor’s property.


Types of Guardianships for Minors

Guardian of the Person of a Minor
A guardian of the person of a minor is an adult authorized to take physical control of a minor and provide care for the minor. This includes making medical and personal decisions concerning the minor's welfare. Guardians are usually the parents of a minor; however, there are times when a new guardian may need to be appointed. These circumstances include death of the current guardian, or any situation where the current guardian is unable to provide the necessary care or has neglected or abused their guardianship responsibilities.

A temporary guardian of the person of a minor can be appointed by the probate court to serve with, but not replace, a parent or guardian if that parent or guardian is unable to care for the minor for a period of time. A standby guardian of the person of a minor can be appointed by the probate court to replace a parent or guardian if that parent or guardian becomes permanently unable to care for the minor. Co-guardians can be appointed by the probate court to share the obligation of caring for a minor.

Guardianship of the Estate of a Minor
A guardian of the estate of a minor is an adult authorized to provide the legal care for, and control over, the financial affairs of a minor, with the minor retaining the beneficial interest in their property.

Guardian Ad Litem
A guardian ad litem of a minor is a person or an attorney appointed by the probate court to represent the minor’s interests in a particular court proceeding.

Testamentary Guardian
A testamentary guardian is a guardian appointed “by will”; in other words, a guardian nominated by a parent of a minor in his or her last will and testament. This type of guardianship is supervised by the probate court, and an application for confirmation of such guardianship must be made.

Temporary Custody or Immediate Temporary Custody
Temporary or immediate temporary custody pending the removal of a guardian is granted with or without a hearing provided that the parent or guardian is shown to have failed in their legal responsibilities to a minor.

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