Guardianship Issues


Probate courts and the probate division of general jurisdiction trial courts are at the forefront of the protection of vulnerable adults, adults with diminishing capacities, and adults with developmental disabilities.  Though the terminology may differ somewhat from state to state, probate courts are charged with the responsibility of appointing guardians (of the person) and/or conservators (guardians of the property or estate) of adults found in need of such appointments.  Probate courts or the clerk of court or someone else under the authority and jurisdiction of the probate judge are charged with the responsibility to monitor the service and activities of guardians and conservators appointed by the court or who are otherwise under the court’s jurisdiction.  For further information, see “Guardianships of Adults.”


Unless legally emancipated, all minors (persons under the age of majority – adulthood – which is 18 in most states and territories) are deemed under law to be “incapacitated,” that is to be incapable of acting lawfully in their own behalf.  Minority and the capacity given to minors are matters of state law.  The general rule, with some state-specific exceptions, is that minors lack the capacity to enter into binding contracts.  Under all state laws, minors are presumed to be under the full control of one or both parents of the minor, that is, they are deemed to be under the “guardianship” of the parent(s).  In most states, when a minor is found to be in need of the appointment of a temporary or permanent guardian or conservator, the probate court will make the appointment.  The need arises most often when the parents are deceased, the rights of the living parent(s) has/have been terminated in a court of law, the parents fail or refuse to care for the minor(s) or otherwise abandon the minor(s),  or the parent(s) anticipate(s) a lengthy absence (such as deployment) during which a guardians will need to care for the minor(s).  For more information, see “Guardianships of Minors.”