What is Guardianship?
Legal Guardianships, also referred to as guardianships, are broader in scope than custody determinations. A legal guardian can meet the definition of a parent, which is "any person or persons legally appointed to care for and have the legal custody of a minor child…" (CGS 46b-1(7)). A guardian can be a caregiver or even a complete stranger who has been given the legal authority by the Probate Court to raise and care for a child. In fact, the term "legal guardian" is used to describe someone appointed by the Probate Court to have legal custody of a minor child where parental rights have not been terminated; this person is not necessarily a custodian of the child. A custodian, however, may be a complete stranger who has been granted legal authority to be the custodian of a child. A guardian may also refer to a person appointed to manage the affairs of an adult (guardian of the person, CGS 45a-655).
The most fundamental purpose of appointing a guardian is to promote the best interests of the child, and to promote the specific interests of that child when necessary. Another important principle guiding the appointment of a guardian is to facilitate the court’s assurance that the guardianship will not cause estrangement from a parent, but will continue contact between the child and the parent and other siblings. The requirement of parental rights the statute imposes on the appointment of a guardian is analogous to the requirement of due process and parental rights which must be followed before terminating parental rights. Therefore , a parent must consent or be found unfit to be denied future access to a child.
The Supreme Court has held that the definition of "custody" applies only in juvenile proceedings. Custody, within the context of a divorce action, refers to exclusive rights to direct the upbringing of a child. While the exclusive right to direct the upbringing of a child may be one component of custody, it does not mean that custody may not include additional elements, including the right to establish the residence of the child. Parents retain the right to take their children to live elsewhere. It is also important to point out that not all parents’ rights are equal. When parents do not share joint legal custody, then the parent with sole legal custody has the right to make decisions for a child without involving the other parent. In cases where parents share joint legal custody, they are required to confer in order to make decisions affecting the child.
Since the legal standard to relieve a parent of parental responsibilities is significantly higher than that of a family law matter where a parent is seeking a modification of a custody order, or to effectuate a change in the parenting plan, the legislature has stipulated that the award of custody and guardianship are not interchangeable.
Requirements to Become a Legal Guardian in CT
To become a legal guardian in Connecticut, there are a few requirements needed for appointment. It is not mandatory that the proposed guardian and the ward reside in Connecticut. However, if the ward is not a Connecticut resident, then the legal guardian must also be a legal resident of Connecticut. In order to be legally appointed as a guardian, the court may require a statement of legal residence from the proposed guardian.
The legal qualifications of a guardian include: being at least age 18, possession of legal capacity, and ability to hear and understand. Individuals who do not live in Connecticut may present documents from the court in their state of permanent residence stating their qualifications to act as a conservator. Eligibility is also affected by a relationship by blood or marriage to the person proposed for guardianship.
Individuals that have been convicted of certain felony offenses are prohibited from acting as the legal guardian for persons with intellectual disability. Individuals cannot become guardians if they have been found incapable of taking care of their own affairs or of managing their property for reasons other than minority or idiocy. Next of kin to the ward cannot be appointed guardian if they have been convicted of a class A felony. No one under the age of 18 can be a legal guardian. Legal guardians that apply to adopt the ward will be disqualified unless other good cause can be shown.
How to Obtain Guardianship
In Connecticut, although the courts have created a family form specifically for establishing guardianship, the process itself is the same as other probate matters. One must start with an application/petition. Once that petition has been returnable to court, you must file various forms. Then, one must attend a hearing before a judge. For modest estates, the guardianships are handled through the local Probate court. For estates over $40,000, although the local probate court may take jurisdiction, it must be remanded to the CT Probate Court for Complex Litigation if there is a dispute regarding the guardianship or the assets. As stated, notice is not required in the initial filing for guardianship. After the petition is filed, the court will usually wait 30 days before scheduling the hearing due to allow the Court time to review the petition. The following documents must be filed along with the petition: Writ of habeas corpus must also be filed and served on the respondent and the State Guardian. Also, the Sheriff service must be ordered, as well as a Guardian ad Litem. By law, the Guardian ad Litem shall be a licensed attorney. If there are other interested parties, notice needs to go out to them as well. After, the individual will go before the court. When filing for guardianship, all heirs must be notified of the proceeding, except, notice does not need to be given to interested parties that are under the age of sixteen. The State has the right to serve on the ward if the court feels like this is necessary. When petitioning for guardianship, you are petitioning the family court for a guardian to take care of the financial affairs and well-being of an individual. The family court will evaluate the situation and decide according to what is in the best interest of the ward. The family court may also prescribe a payment plan or monthly monetary expenses. In general, the family court will retain jurisdiction over the matter for the life of the Ward or until the matter is resolved by the local court or Probate Court for Complex Litigation.
Types of Guardianship in Connecticut
When it comes to legal guardianship in Connecticut, there are various ways in which the state addresses the needs of different populations. For instance, there are distinct guardianship types for children—known as minors—seniors or elderly individuals, and those who are disabled.
In recent years, there has been a growing need for legal guardianship of the elderly in Connecticut and elsewhere due to a rapid increase in the senior population. A considerably large number of seniors experience declining mental faculties, which creates a risk that they are no longer able to make important decisions about their future. A legal guardian is then appointed by the court to act on the elderly individual’s behalf and make these decisions.
For younger children in Connecticut, a legal guardian may be appointed when parents die, have not been located, voluntarily relinquish their rights to their son or daughter, or simply become incapable of fulfilling their parental duties. In other words, a guardian is appointed when there is no one else readily able to care for the child and make decisions about their wellbeing.
For disabled adults, a legal guardian is usually appointed when they cannot handle business or personal affairs on their own and might be susceptible to abuse or neglect if no one acts on their behalf. If you have a disabled adult child or loved one, you might need to consider legal guardianship in order to protect them.
There are two main types of legal guardianship in Connecticut: temporary and permanent.
As the name implies, a temporary guardianship lasts for a shorter amount of time than a permanent one. This form of guardianship might be necessary in an emergency situation, where there is a need to quickly appoint someone to handle the affairs of a minor, disabled adult, or elderly person. For example, if the legal guardian for an elderly parent dies suddenly and the family needs to quickly appoint another individual until the matter can be decided through a legal proceeding, calling on an existing temporary guardian is preferable to letting time pass without any action being taken. Temporary guardianships last until the legal proceeding is resolved, or they may last up to six months.
Permanent guardianship lasts indefinitely, typically until the death of the ward. It may be granted at the conclusion of a court procedure deciding on the assignment of a legal guardian.
Rights and Duties of the Guardian
The legal rights and duties of a guardian in Connecticut are numerous, governed by the Probate Code, as well as the specific language of the order of the Court appointing the guardian. The powers and duties of guardianship can be broad or narrow depending on the circumstance, and the status of the incapacitated person.
For example, if a person chooses to grant their relative a power of attorney, they can grant that person broad powers over financial affairs, healthcare decisions, and even make final decisions about burial and cremation. These powerful benefits take away the authority of the person who has granted the power of attorney, so the decision to give someone the power of attorney should never be taken lightly.
By contrast, the Court could appoint a guardian over a power of attorney granted by a mother in the process of dementia, a separate guardian to oversee finances, and then a separate guardian over healthcare decisions and decisions regarding placement. These are the most limited provisions the court can impose on a person .
For each decision, the rights and responsibilities of a guardian of a person, or the guardian of the property, differ. For example, a guardian of the person must comply with the statutory duties listed in CGS 45a-686. They must receive approval of the judicial authority for his or her care and custody of the ward. A guardian is not able to deny visitation to family members and while a guardian can deny requests for visitation based upon legitimate medical needs, the judicial authority must still approve the decision of the guardian. Presumably a guardian would act in the best interests of their ward, but they must be diligent to obtain court approval before denying visitation from family members.
Additionally, Connecticut law requires that a judge review the guardian’s status annually. The judge can appoint a Court Monitor to attend and testify at the hearing. It is critical for the guardian to maintain records and finances and be prepared to account for his or her work.
Terminating & Modifying Guardianships
In Connecticut, there are specific provisions for the termination and modification of guardianship arrangements. Termination may occur as a result of various factors including, but not limited to, the death or recovery of the person under guardianship, the attainment of majority by the ward, or through the successful petition of a relative or other interested party that the circumstances originally warranting the guardianship have changed significantly.
Modifications may also be brought about by petitioning the court under a variety of circumstances. For one, if the guardian believes that the responsibilities of the guardianship should be modified (either by addition or reduction), the guardian, along with the ward if able, may petition the court for a hearing to discuss the need for such changes.
Additionally, the court can modify the initial order if the petitioner is able to demonstrate that such modification will suit the needs of the guardianship more appropriately while fostering the rights and best interests of the ward.
Once a termination or modification petition has been filed, the court will schedule a hearing to consider the petition. Written notice will need to be given to the attorneys, guardian ad litem, and the guardian (if he or she is not also the petitioner). At the hearing, the judicial authority will hear the evidence presented regarding the need for the proposed modification or termination. From there, the court will decide whether to approve or deny the petition based on the needs of the ward in keeping with the guardianship plan.
Local Legal Assistance and Resources
Legal Support and Resources for Guardians
The path of legal guardianship is often a complex and emotionally charged journey for patients and families. Guidance from experienced professionals can help to ensure that the process goes as smoothly as possible. Attorneys with particular expertise in Connecticut Title 17a provide critical support for families seeking legal guardianship. They can help you navigate the court system, understand the implications of guardianship laws, and ensure compliance with existing regulations.
Attorneys who practice law in this area are skilled at handling all matters involving individuals with disabilities, including Social Security, Medicaid, worker’s compensation and creating special needs trusts. They also have a firm understanding of the Variety of medical and service providers that may be involved with the case. An attorney experienced with these matters can provide guidance on when to seek legal assistance, how to seek guardianship for a patient , and how to comply with any relevant state or federal regulations, like the Americans with Disabilities Act (ADA) or Individuals with Disabilities Education Act (IDEA).
Local advocacy groups such as the ARC Connecticut and the Connecticut Legal Rights Project offer individuals and families information about guardianship and other legal issues. They can also recommend or help to connect you with attorneys and support services that provide additional legal assistance. Organizations dedicated to a specific disability, such as Autism Spectrum Connecticut, may also provide additional connections to other attorneys or resources for those coping with autism.
The Connecticut Judicial Branch maintains an online database of the general probate court, which can be used to search for a probate court by its name, location, town, or ZIP code. Individuals facing personal security concerns may wish to reach out to the police department for the town or city in which they reside for additional information on personal safety and legal guardianship.