What is a Ward of the Court?

People become wards of the court, or state, because they are unable to take care of themselves at some level and require certain legal protections.

This legal designation is also commonly called being a “ward of the state” and may apply to minors as well as adults. It’s also important to understand that a ward is not necessarily someone who has no family or support system within the community. Rather, they may require enhanced protections beyond what a legal guardian or family can provide. Other salient issues involve otherwise responsible legal guardians not wanting to bear the sometimes-onerous financial burden associated with minor children or adults who unable to maintain self-care.

To say that the process and issues involving wards of the court are complicated would be something of an understatement. In an effort to provide loved ones with a working understanding of what it means to be a ward of the court, we hope the following overview proves useful.

How Does One Become an Adult Ward of the Court?

As we are acutely aware, not all adults have the ability to care for themselves adequately. Whether that stems from a disability, age, or illness, the courts can provide enhanced protections to ensure ongoing treatment, care, and financial oversight, among other items.

An adult ward of the court may have no remaining family members to step up as a legal guardian. Others may indeed have loved ones that are willing to act as their guardian but are not necessarily in a position to shoulder burdens such as financial support as well as caregiving. Still, other wards have court-appointed guardians connected with government agencies. These professional organizations may include the following.

  • Social Services
  • Human Services
  • Mental Health Agencies
  • Health Departments
  • Departments for Aging Adults

In order to become an adult ward of the court, that person must undergo a review process that may include assessments by medical and psychiatric professionals who support a claim the person is not competent to successfully maintain minimum health, safety, and financial standards. In the vast majority of cases, the courts will hold a hearing and secure written and oral testimony from experts, friends, and family members, among others. If deemed incompetent, the individual may enjoy the legal protections afforded by the court.

It’s also important to keep in mind that the courts do not necessarily impose guardianships. People who recognize they are seeing the signs of diminished capacity to maintain their health, well-being, and estates, can work with an attorney to voluntarily petition the court. In these instances, the potential ward of the court can have substantial input about the parameters of the guardianship and who the court appoints to that station.

In other cases, a friend or family member can petition the court on someone’s behalf, even in cases of involuntary guardianships. These cases can be emotionally taxing for family members, particularly when your loved one does not recognize their failing state. In these involuntary cases, the ward generally has little or no input about issues such as oversight of their well-being or the designated guardian. The court imposes what it believes is in the best interest of the ward.

In other cases, a friend or family member can petition the court on someone’s behalf, even in cases of involuntary guardianships. These cases can be emotionally taxing for family members, particularly when your loved one does not recognize their failing state. In these involuntary cases, the ward generally has little or no input about issues such as oversight of their well-being or the designated guardian. The court imposes what it believes is in the best interest of the ward.

What Does an Adult Guardian Do?

A court-appointed guardian is often tasked with overseeing healthcare and financial planning decisions. It’s not uncommon for the guardian to work closely with the ward through the process and move forward with the person’s full consent. These are common items a guardian works with the ward.  

  • Place of Residency
  • Mental Health Treatments
  • Physical Health Treatments
  • Bill Payments
  • Personal Affairs
  • Estate Planning
  • Last Will & Testament

If the ward has significant financial resources, the court may also appoint a conservator with some expertise to manage their estate. The guardian, on the other hand, advocates on behalf of the ward’s best interest in all other matters and generally submits periodic reports to the court.

How Long Can an Adult Remain a Ward of the Court?

Once a person has been deemed a ward of the court, that legal designation is usually only removed in the event they are no longer hindered. In some instances, the court may dismiss the guardianship because it’s in the person’s best interest. Although the latter tends not to be the norm, people who have recovered from a physical or mental health condition may see the ward designation lifted, and the guardianship discontinued. In the overwhelming majority of cases, wards of the court remain so until they pass away.

When Does A Minor Child Become A Ward of the Court?

When children are deemed wards of the court, the circumstances and prevailing issues can be quite different. For example, when the court appoints a legal guardian, it is more often not the case that they become financially responsible for support. In these cases, guardians are also not generally liable for other expenses associated with the child. However, when children become wards of the court, parental rights are usually terminated.

This is an important distinction for minors and parents alike to understand. That’s because there are instances when the court may assume authority over the child even though the minor remains in the custody of a parent. In this scenario, the court has asserted some degree of authority but has not yet gone as far as to remove parental oversight. In such cases, minors are not necessarily a legal ward of the court.

That same reasoning holds true in cases when minors work with an attorney to successfully petition the court to be declared emancipated. Although such minors are no longer under the legal control or protection of a parent or guardian, they are not automatically under the court’s protection either. Therefore, they do not meet the legal standard of a ward of the court.

Another compelling situation is when minors commit crimes and are incarcerated. The mere fact that the state has assumed control and placed the child in a correctional facility does not necessarily make them a ward of the court. As long as a parent or appointed guardian is in place, the minor may not be considered a ward.  

What Triggers A Minor Becoming a Ward of the Court?

Like the adult process, there are a number of ways that a child can go from being the responsibility of a parent to a ward of the court. Sadly, ranked among the more prevalent pathways, the court places children under its protection when they are neglected, abused, or otherwise mistreated. We hear and read about many extreme cases in the media of children being subjected to squalor, malnutrition, and other horrors. The legal protections of the court are often inserted until the children can be treated, and a suitable living environment can be secured.

In other cases, the court may proactively take control over wayward youths. It’s not unusual for a minor with a growing criminal record, history of drug and alcohol abuse, or mental health issues to be removed from a parent’s custody. Wards may be placed in institutional settings that include rehabilitative programs. The court’s goal in cases of wayward youths is to redirect negative behaviors and integrate them as productive members of the community.

There are also cases when parents are physically or mentally unable to provide the stable homelife a child requires. Whether that evolves from diminished physical health or an emerging mental condition, parents have the option to work with an attorney and petition the court to place their child under its protection. Parents are often required to sign over custody in voluntary petitions. In these types of cases, parents can have significant input regarding placement and the future well-being of their child. It’s also not unusual for parents to regain their capacity to care for a child and ask the court to reinstate their rights.

How Long Does a Person Remain a Ward of the Court or Ward of the State?

In many situations, a person becomes a ward of the state permanently, because there are only limited circumstances where the status is removed. One is if the ward recovers and is again able to manage their own affairs. The other is if a family member or other person becomes able to take on the role of guardian and the change is in the best interests of the ward. Both of these situations are reviewed in a hearing to terminate ward of the state status.

Is the State Financially Responsible for a Ward?

Becoming a ward of the state does not mean receiving financial assistance from the state. In fact, the ward is responsible for not only their own costs but reasonable fees for the guardian’s services as well. If the ward has savings or other assets, the guardian is responsible for using them to the ward’s benefit with oversight from the court. Other financial resources the ward may have include wages from any job the ward is able to perform, Social Security Disability benefits, and other government assistance programs. The guardian is responsible for helping the ward manage and obtain these financial resources. The state is responsible for overseeing the guardian’s actions. Any special assistance the ward may receive due to being a ward of the state or due to their condition is separate from the legal process of becoming a ward of the estate and having a guardian appointed.

What Are the Benefits of Being a Ward of the State?

Being a ward of the state is really a last resort option. When no other options are available, the state will take the steps needed to make sure that a person’s basic needs are met.

What are the Disadvantages of Being a Ward of the State?

The biggest disadvantage to being a ward of the state is being under the guardianship of an unknown person. Guardians are vetted, but an overworked and underfunded legal system means that things don’t always go as planned. There have been numerous complaints of financial abuse by a guardian. In some cases, this has even involved someone attempting to become someone’s guardian for the purpose of draining their assets. While these types of crimes have also been committed by related guardians, knowing who your guardian will be gives you more control over the situation as well as the family pressure to due the right thing.

Other complaints regarding guardians have included disregarding the ward’s wishes, not providing individualized solutions, not providing information to family members or the court, or inappropriately controlling or restricting relationships with others. The causes for these are varied. In some cases, a well-intended guardian is simply too overworked. In others, the guardian is more interested in collecting a check than providing the service if not trying to hide an outright financial fraud. Depending on the ward’s capacity and level of involvement from their family, if any, it can be difficult for anyone to recognize what is going on and to try to find a solution.

What are the Alternatives to Becoming a Ward of the State?

Becoming a ward of the state is sometimes unavoidable but can be prevented in some cases with a little planning. The best alternative is to have a family member or friend who can become the guardian. Potential guardians sometimes avoid taking on the responsibility out of fear of a potential financial burden. Remember, though, that the guardian is not financially responsible for the ward. Working with an attorney or a social worker can help identify the financial resources available to the ward so that all of their expenses can be met. The guardian may also be eligible for tax benefits if they do cover some of the ward’s expenses such as allowing the ward to move in.

Preplanning is also a good alternative to becoming a ward of the state or at least to some of the potential negative outcomes. Someone with a family history of dementia or who is concerned about an accident or sudden illness may want to put medical and financial directives in place in case they lose the capacity to make decisions in the future. Any future guardian would have an obligation to follow these directives except where a judge agrees that very compelling circumstances require a change.

Can a Parent Stop a Child from Becoming a Ward of the Court?

If you’re charged with abuse or neglect, you have due process rights to protect your parental rights and can work with an attorney who practices in that area to maintain custody. If you die or become incapacitated, it’s simply impossible to go to court and fight for your children. Since it’s this latter scenario that you’re trying to prevent through estate planning, the only way to prevent your child from becoming a ward of the court is to plan ahead.

Can a Guardian Be Blocked or Replaced?

The court must always agree that a potential guardian would serve the best interests of the ward. A guardian may also be terminated and replaced when the judge finds it is in the best interests of the ward to do so. The ward, if able, or any person with knowledge of abuse or unsuitability may challenge the appointment of a guardian or request that a guardian be replaced. It is not required to prove that the guardian has committed any particular abuse, violated the law, or acted outside the bounds of the original court order. Those factors can influence a judge’s decision, but the fact that someone would be better suited to be the guardian is enough for a replacement. The court will hold a hearing to review the evidence, allow the guardian to respond, and make any adjustments needed.

How to Decide Who Takes Care of Your Children

If you want to decide who takes care of your children instead of having a court do it, there are a few steps you need to take.

Update Your Emergency Contacts

Schools, daycares, and anyone else who takes care of your children for the day will usually ask for a list of people who are authorized to pick up your children. This should include who should pick them up in an emergency when you can’t be reached. Your children should also know the name and phone number of a relative or close friend to call in an emergency.

Keep in mind this is just a temporary arrangement. Even if your selected person is willing to care for your children indefinitely, they won’t have legal authority to make decisions for them at the doctor, school, bank, or other important places.

Nominate a Guardian

A more permanent solution is to nominate a guardian. A guardian takes full care of your children with the same authority of a parent. While the court technically selects the guardian, it will honor a parent’s wishes as long as the nominated guardian is suitable. If your chosen guardian lives out of state, you may wish to also nominate a local temporary or backup guardian until the permanent guardian can arrive or your family can arrange for the children to move to the permanent guardian.

Create a Power of Attorney

You can also create a power of attorney for your children. This is similar to a guardianship in that you can grant your selected agent full authority to do anything you could, but it’s more temporary. A power of attorney can help in cases of temporary illness or if something happens to one parent while the other is traveling away from home.

Appoint a Conservator

A conservator is similar to a guardian but only handles financial affairs while another guardian handles everything else. Some parents worry about a guardian misusing assets the parents left for their children’s benefit. While courts do monitor guardians, some financial abuses can go unnoticed by the court if another family member isn’t aware to bring it to the court’s attention. Appointing a separate conservator provides a more direct form of oversight.

How to Provide for Your Children Financially

When courts are reviewing who will care for children, they consider financial means. A family member who you would like to be the guardian may not have the income or assets needed to raise your children. While the guardian generally doesn’t legally have personal liability for childcare expenses, your children do need some source of money in order to not become wards of the court. You have several options to achieve this.

Life Insurance

Life insurance is one of the easiest ways to provide for your children. You can buy a policy that covers your future earnings or what you would have spent to raise them including college costs. You can name your children as beneficiaries, or have the money go into a trust on their behalf.

Will

You can also use your will to leave money to your children. Creating a will is a simple step, but it isn’t without pitfalls. A will has to go through probate, and if you have debts, your creditors may be entitled to repayment before your heirs receive anything. A will also provides the lowest degree of control over how the money you leave is spent.

Trust

A trust with your children as the beneficiary holds assets to your benefit during your life and then automatically transfers them to your children upon your death. Some of the major benefits of using a trust are that you can set it up to hold money until your children reach a certain age or to be used for a specific purpose.

Durable Financial Power of Attorney

You should also prepare for a long-term illness or other incapacitation. Life insurance, wills, and trusts only work after death. If you are still alive, your family will need the legal authority to access your funds to use for your children.

A durable power of attorney kicks in on a triggering event you specify such as your hospitalization. You can give your power of attorney access to your checking account, or you can maintain a separate savings account with funds for your children in case of an emergency. To the extent you have funds available, this guarantees money will be available for your children regardless of your family’s willingness or ability to cover their expenses.

Terminating Guardianship in Wards of the Court or Wards of the State

It’s essential to keep in mind that adult and minor child guardianships can be vastly different. In large part, that’s due to the underlying reason the court deemed someone a ward of the court in the first place.

In both types of guardianship, the basic premise is that the individual cannot conduct reasonable self-care. This may be true of both minors and adults, but most children have parents in place to act in their best interest. When our valued elders, for example, begin to lose the physical and cognitive skills to make salient health, wellness, and financial decisions, oversight may be necessary. Other adults may temporarily fall ill, and the protections are put in place only until they recover.

When children go astray, become incapacitated, or a parent is unable to provide proper care for them, guardianship tends to be a stop-gap measure. Either the situation corrects itself, or the minor eventually becomes an adult and takes on their own decision-making. In either case, the court will need to be formally petitioned to end a guardianship.

How to Terminate an Adult Guardianship, Including Wards of the Court or State

In order to understand how to navigate the stringent legal process of ending a guardianship, it’s essential to consider how you got here. In all likelihood, either a third party petitioned the court and won a case against you to deem you incompetent, or you came to the process voluntarily. This difference has a substantial impact on termination.

Going to the court and asking to be voluntarily deemed a ward came with certain advantages. You probably had input about who would become your guardian during your recovery. And, your wishes about what areas this person would hold legal sway may have been negotiated. Terminating a voluntary guardianship often entails merely proving you have regained competence.

On the other hand, involuntary tracts could mean that you will face increased resistance from the party or parties that petitioned the court in the first place. That may mean overcoming objections as well as having documentation and testimony from experts that you are prepared to resume control over your affairs. These are common steps that are required to terminate a guardianship.  

  • File Legal Papers: A Petition to Terminate Guardianship, and a Citation or a Notice of Hearing, will need to be crafted and filed on your behalf. Supporting documents may be required to gain a hearing. Materials may include a final accounting reportIf your guardian or conservator oversaw your estate while recovering, a final reckoning of all financial records must accompany your petition. Papers may call for letters from you’re your physicians. Your doctors must provide statements that assert you have regained the ability to conduct your own affairs competently.
  • Serve Guardian & Others with Papers: All relevant parties must be formally notified that you have petitioned to terminate the guardianship via certified mail. If this step is not thoroughly completed, a judge will likely not hear your case.
  • Attend a Hearing: The judge will read the pertinent documents and likely ask questions. If others object to the petition, more comprehensive testimony may be required. Once the judge has been satisfied that you meet the legal standard, an Order Terminating Guardianship will be issued.

If the guardianship pertained to end-of-life considerations, the court generally requires a financial accounting before releasing the guardian. The challenges confronting parents or other loved ones trying to terminate a guardianship and regain custody can be significantly different.

How to Terminate Guardianship Over a Minor

In order to restore your parental rights and regain custody of a child, you may be tasked with petitioning the court to terminate a guardianship. Much like when adults are deemed wards of the court, the reason your child has a guardian in place will likely impact how difficult you can anticipate the process ahead.

For instance, if another family member petitioned the court to have your child made a ward, the underlying claims will likely need to be adequately addressed. If it involved substance abuse, neglect, or a health condition, a proactive filing and subsequent argument at a formal hearing would have to overcome the initial court findings. In other words, you face an uphill battle of basically proving your ability to properly care for yourself and the child. The goal of this rigorous process will involve persuading the court of the following.

  • The adverse situation has been resolved
  • It’s in the child’s best interest to be placed with a parent
  • You can successfully provide for daily health, wellness, and emotional needs of the child
  • You are financially stable or are receiving adequate public assistance
  • You enjoy positive extended family and community relationships

The process of regaining parental rights and terminating a guardianship requires crafting a highly persuasive petition and supplying authoritative supporting documents, as well as possible witness testimony. There are also a variety of legal pathways that can be accessed, depending on how and why you got to this point.

  • When Guardians Object: In cases in which the court-appointed guardian objects to their removal, a full hearing may be required. This brings together the key stakeholders in the process to determine whether to keep court oversight in place or give your child back to you.
  • When Guardians Agree to Termination: In such cases, parents need only demonstrate that they are competent and able to serve the best interest of their child in a stable and healthy fashion.
  • Terminating for Adoption, Marriage, or Service: The act of adoption effectively ends ward of the court status. The same holds true in marriage, and minors who enlist in the military enjoy grounds to terminate the guardianship over them.
  • When a Child Turns 18 Years Old: When a minor reaches the age of majority, they are no longer a ward of the court, and the guardianship times out. The court-appointed person would be wise to file a notice with the court.
  • Guardianships Over Estates at 18 Years Old: Control over assets does not generally end when a minor turns 18 years old. The court will need to be petitioned, and a final accounting of the finances must be filed. The court must issue a directive releasing the assets before the previous ward can access them.
  • Cases of Emancipated Minors: When the court agrees to emancipate a minor, they no longer are deemed a ward of the court. Part of the hearing should include the automatic termination of the guardianship.

In some cases, the court-appointed person finds that they can no longer serve in that capacity. This could be due to illness, relocation, or they believe terminating the guardianship is in the minor’s best interest. The court enjoys great latitude in such cases and may decide to resolve the matter in a number of ways. The court may agree that the minor no longer needs or benefits from oversight. In many instances, the court appoints a new guardian to take over the responsibilities.

Protect Your Loved One’s Rights & Interests

If you or a loved one is facing the possibility of becoming a ward of the court, or you fear for how guardianship will transpire in a known or unknown future scenario, it’s imperative that you engage the best legal counsel possible. The legal hurdles, hearings, and documentation required to negotiate the process tend to be highly complicated. And, missteps can cause unexpected setbacks and a less than desirable result.

How To Prevent My Child From Becoming a Ward of the Court or State

The court system involves complex filings, documentation, and bureaucracies that are difficult for everyday people to navigate. A simple missing document or misstep can upend your efforts to terminate a guardianship. It’s in your best interest to have a determined and compassionate attorney who works in the family courts on a daily basis. Moreover, it’s critical you get your estate plan set up today so that you can avoid these nightmares for your family before they even get a chance to happen.   Contact us today by filling out the contact form below or giving us a call.  We’ll have a very-friendly estate planning attorney connect with you asap.