All About Legal Guardians
Legal Guardianship is a court’s authority to appoint an individual to take responsibility for the care and livelihood of a child. Guardians are considered either "plenary" or "limited." With a plenary guardian, the guardianship is total and is basically "full custody." With a limited guardian, the guardian’s responsibilities will be laid out very specifically and limited to certain areas in the order appointing him or her.
Why is legal guardianship important? Guardianships are basically used in three instances. First, when parents are divorced and want a third person to take care of the children in certain situations. Second, when one parent dies and leaves a child without a guardian . Third is when a court determines that a child is without a proper guardian because of abuse or neglect. Actually, there is a forth use, but rarely practiced and that is the appointment of a guardian for an adult. Courts appoint a guardian for the property if it is determined that an adult is incompetent or unable to manage financial matters on their own.
In West Virginia, the Circuit Court has the authority to appoint a person as a legal guardian of the person or property of a minor or incompetent person. The requirements of a guardian are outlined in West Virginia Code Sections 44-10-1, et. seq. The law makes clear that the welfare of the minor must be protected and that the guardian shall pursue any and all reasonable means to accomplish this purpose.
Who Can Be a Guardian?
An older sibling acting as a legal guardian must meet a list of criteria of guidelines before the petition can be accepted and granted by the courts. They must be considered to have mental capacity to understand their duties, be over the age of 18, and have had no prior criminal history involving acts of abuse or neglect, etc. If the parent is acting as a legal guardian for a child with disability and the child reaches the age of majority, they can also petition to become the child’s legal guardian, so long as they meet the requirements above.
The Legal Path: Sibling Guardianship
Becoming a guardian for an older sibling follows a general legal process, which may vary slightly from one jurisdiction to another. Starting generally, once a decision has been made that a sibling may become a guardian, the older sibling must be ready to assume legal responsibility for making health, financial, and legal decisions for their sibling. The legal process generally begins with filing petitions in the appropriate family or probate court. A will or legal document leaving guardianship of the younger sibling to the older sibling, executed by the guardian prior to their passing, may speed up the process, otherwise a legal petition may be required to appoint the older sibling as the guardian. If your loved one is already deceased, you may ask them, via a will or other legal document, to name you as the legal guardian, even if the person you’re asserting rights for is older than you. State laws will generally require individuals seeking to become guardians to be state residents, generally for at least a year, do a criminal background check, and be of legal age. Once the application process has been completed, the family court will evaluate all submitted paperwork, which may occasionally involve a court hearing. A guardian presents their case for guardianship at the hearing. There, the judge or magistrate will decide whether or not guardianship is needed, and if so, who will become guardian. Additional circumstances may affect the decision. For instance, an older sibling who is married may be considered a better candidate for guardianship than a parent who has a family history of mental illness. A guardian may be totally independent, or they may be required to provide some accounting for their time spent as a guardian. Guardianship is a serious responsibility. It may be beneficial to consult with an experienced attorney who can guide you through the process and help you look out for the best interests of your sibling, and yourself.
Rewards of Siblings as Guardians
As we’ve noted, naming an older child as the guardian of younger siblings is controversial and has a lot of potential downsides. But there are also some potential benefits of such an arrangement, and most of these flow from the fact that they are usually made by parents who are doing their best to mitigate disruption in the lives of their children.
Continuing the family relationship is an obvious benefit of naming an older sibling as the legal guardian of a younger child. Because families are very different units with different values, cultures, living situations, experiences and relationships, placing a child with an extended familial in home provides more continuity than placement in the home of a stranger, or even with other relatives. Even people who are not related to the child can provide more continuity with the placement than people who are related to the child by blood, but have never seen him or her before.
Even a busy working teenager can provide a tremendous amount of consistency, support and reassurance to a grieving child. While it might seem difficult for a young person to take on the responsibilities of serving as guardian of a younger sibling, an older child is usually more than capable of doing so. While serving as guardian will definitely be a heavy responsibility, parents are usually in a much better position to assess whether the child they have in mind can handle the duty.
Continuity of parenting style may also be of consideration. Parents have taught their children what to expect from adults who provide care to children, and that experience can provide comfort and security to a newly orphaned child. Having someone familiar and trusted provide care for a child after the death of their parents is often essential to help the child through the time of transition.
None of this is to suggest that guardianship by an older sibling is without consequence to the child, and this should be viewed as a secondary option to caring for children by parents, grandparents or other close relatives.
Pitfalls of Siblings as Guardians
Becoming a guardian to an adult sibling can come with many challenges. While most individuals have a natural inclination to want to take care of their loved ones, the road to this goal may be more complicated than originally envisioned. Individuals have to consider not only what the needs of their sibling will be but also how taking on additional responsibilities will impact their lives, their careers, their marriages and the rest of their family. An individual must also consider the financial cost of being a guardian not only in terms of what is required by the State, but also the time and effort that is expended in order to care of a sibling with disabilities.
As stated above, a guardian may not be compensated for their time spent in that role unless he or she is a professional guardian. As such, bearing the costs of being a guardian falls solely on the unpaid individual. This can place a financial burden on that individual as caring for someone with disabilities can involve costly monthly expenses for insurance, medical care , therapies and specialized equipment. State programs may only provide limited coverage for these items so individuals need to determine how they are going to support a loved one who may need extraordinary care with limited State assistance. In addition, caregivers often need to schedule around the caregiver’s plan in order to meet the needs of the sibling with disabilities. This can involve looking at the availability of support services as well as the caregiver’s own obligations. Depending on the level of need of the individual, it may be necessary to forgo the "normal" spouse roles in the marriage.
No one ever envisions that they will become a legal guardian. With that being said, no one ever envisions having a disability that would affect their ability to live independently. Most siblings do not plan on becoming a legal guardian when they are younger. However, with an increased awareness that disabilities can occur at any time in a person’s life due to development, age or accident, it is important for individuals to keep in mind that they have to plan for the possibilities and not only for the probabilities.
Alternatives to Siblings as Guardians
Siblings are not the only ones who can care for a child, and if they are not able to do so for any number of reasons, your options do not automatically revert back to the state. There are several other options available for guardianship.
Kinship families have been around since the beginning of time. Grandparents, aunts, uncles, cousins, and close family friends have been named as guardians of children for many reasons. If your older child is unable to provide care for his or her younger sibling, the court is usually in favor of placing the sibling with another family member known to the child.
In addition to other family members, friends, or even other parents of older children, it is also important to keep in mind that foster care may be an option for siblings. The foster care system is there to step in when other options are unavailable, including sibling care. The court will seek out non-kinship family members before considering unrelated foster parents.
Insight from Real-Life Cases
The following vignettes are real-life examples of older siblings stepping in and becoming the legal guardians of their brothers and sisters.
- Joey was ten years old when his two-year old brother, Sam, was diagnosed with a terminal illness. Their mother passed away shortly thereafter, and their father had a substance abuse problem. Since his father was unable to properly care for Sam, Joey sensed that he should step up and care for him. But Joey was only ten years old, and he needed to figure out how to afford a house with three bedrooms so that he and Sam could live together. Joey enlisted the help of his grandparents, and they helped find Joey a job cleaning the local laundromat for minimum wage to help him pay rent. They also came over to help Joey fix up his house, which he bought at a big discount because it was rundown. With the grandparents’ assistance, Joey was able to become Sam’s legal guardian.
- Gus was twenty-one when his mother passed away. His father was an addict and was not able to care for him. Gus’s younger brother was placed in foster care. Gus loved his brother and wanted to be with him, but he figured that he did not have the money to take care of his brother and to hire a lawyer to become the legal guardian. Some of the other adults in Gus’s life noticed that the brothers were not together, and recommended that Gus find a family law attorney. The attorney was very understanding and helped Gus through the whole process, and Gus got the ball rolling. Gus is currently in college and splitting rent with three friends in a two-bedroom apartment. The three roommates conveniently rotate staying over on the couch each night.
- Betty was twelve when her father passed away. Pleased to have a lawyer in the family, Betty took it upon herself to research how she could become a legal guardian for her two younger brothers. She applied through the courts, using forms she found online, and was soon placed in a guardianship program to demonstrate why she should be awarded guardianship of her brothers. She had a job lined up, with extended family members watching the younger boys while Betty works. The boys are very happy that they could stay together with their sister, and have bonded very well.
Legal Help and Resources
State Bar Associations: Many states provide resources for individuals in need of legal guardianship. Your state’s bar association can likely refer you to reputable and knowledgeable estate planning or elder law attorneys who can answer specific questions related to guardianship procedures and proceedings.
Guardianship Networks: Several national and state organizations—such as the National Guardianship Association and the American Bar Association’s Commission on Law and Aging—help match prospective guardians to siblings in need of protection. Families should verify the qualifications and character of the guardianship match before working with them.
Senior Centers and Long-Term Care Facilities: Local senior centers and long-term care facilities are often hubs for groups supporting elderly individuals , including legal resources for siblings seeking to exercise their advocates.
Government Websites: Most state and local governments have information on government websites regarding guardianship laws and procedures. Be sure to check with your local district court for information that is specific to your jurisdiction.
Counseling Services: Elderly individuals with dementia or other mental illnesses often have difficulty caring for themselves. Legal counseling services are often available to assist siblings in providing special care to an older brother or sister.
Support Groups: Independent support groups and advocacy organizations offer legal representation to siblings of persons needing guardianship or assistance. A qualified support group evaluates an individual’s needs and matches them with an appropriate agency or reference to specific counsel.