A guardian is a person to whom a judge or a will gives the legal responsibility to care for a child or an adult who does not have the capacity for self-care. The assigned individual is usually responsible for the care of the ward (the child or incapable adult) and that person’s financial affairs. However, the second role in financial affairs is usually called conservatorship in law.
Some states, California, for example, call the two roles “conservator of the person” and “conservator of the estate.” The guardian is usually either named or selected by a judge in a will or a court of law. Parents may name a guardian to their children in the event of the parent’s death or inability to provide for them.
Guardians are known to be governed by state and local laws and serve as the ward’s fiduciary. Because guardians exercise such extensive authority over their wards, they are scrutinized by the courts. Guardians have to prepare financial statements documenting that they have managed the ward’s finances in the ward’s best interest. Courts usually handle guardianship issues with limited jurisdictions, such as probate and family courts.
Any individual at least 18 years old may serve as the guardian of a child. However, if you are not a relative (immediate family member, grandparent, aunt, uncle, first cousin, great-grandparent, grand aunt or grand uncle, half-brother of guardianship), the Division of Family Services needs to assess the placement.
What are the Duties of a Guardian?
Assuming the court has no limitations in the Guardianship Order, the guardian will be responsible for physically and emotionally providing for the child. The guardian must create a healthy and safe living environment, provide education, and all the necessary and appropriate medical treatment, including but not limited to medical, dental, and psychiatric care.
Furthermore, the guardian may be responsible for deciding certain aspects of their life, including:
- Medical treatment;
- Right to marry or enlist in the military;
- Representation in legal matters;
- Welfare and upbringing; AND
- Where the child will reside.
Keep in mind that because a parent’s parental rights are not terminated when a non-parent is given guardianship, the court will consider the following factors:
- How much, if any, contact the parent(s) should have with the child after the guardianship is granted;
- How much, if any, information about the child the guardian may share with the parent(s);
- A visitation schedule, if appropriate, for the parent(s) to spend time with the child;
- Will the child continue to have the right to inherit from their parent(s), and will the parent(s) continue to have the right to inherit from the child; and
- If the guardian desires to have the child inherit from them, the guardian must state that desire in a will.
It is important to note that the parent may need to continue to provide financial support to the child. Therefore, the parent(s) may legally be mandated to pay the guardian child support. Child support is handled in a separate proceeding.
How does a Guardianship of Minors End?
Several events usually trigger the end of a guardianship:
- The passing away of the child;
- The child reaches the legal age of majority, typically 18 in the majority of the states;
- A judge determines that guardianship is no longer necessary or beneficial for the child and;
- The sole purpose of guardianship was to manage the child’s finances, and the child’s financial assets were exhausted.
Guardians can request a court to be relieved of guardianship, at which point the court will assign a new guardian. Guardianship is the possession by a non-parent of the powers, rights, and duties which are required to protect, manage and care for a child. A guardian has the legal duty to care for the child as if they were the child’s parent until the child reaches 18.
Therefore, a guardian is considered to possess the same legal authority to care for the child as a parent would. However, unlike a parent, the guardian cannot be held liable by a third party for something the child did wrong because they are the guardian. Moreover, the court can limit any powers and duties granted to a guardian.
When is a Guardianship Necessary?
Generally, parents have the legal right to decide for their children, and adults have the legal right to decide for themselves. But on some occasions, this is not possible. Therefore, an adult needs to step in to handle the situation. A guardianship may be required over a child if no parent is available to care for the child. A guardian over the child’s estate might be necessary if the child inherits assets. This protects the assets until the child is an adult and can decide independently.
A guardianship may be necessary over an adult if the adult is incapacitated, meaning the person cannot take care of themselves due to mental illness, mental deficiency, disease, or mental incapacity. Remember that several guardianship alternatives can accomplish similar purposes to a court-ordered guardianship.
Legal guardianship is one of the options available to parents planning to care for their children in their absence due to illness or incarceration. It permits the parents to name a caregiver and provide the caregiver with certain legal rights regarding the child’s care. In most cases, the parents’ legal rights are not terminated, and they still play a role in their children’s lives.
Furthermore, according to state regulations, legal guardianship is assigned by a court, such as the family court. For parents or guardians involved in guardianship cases, it may be useful to consult with or retain the services of an attorney who practices family law for assistance.
In addition, guardianship can be a permanency option for a child placed in out-of-home care as it creates a legal relationship between a child and caregiver that is intended to be permanent and self-sustaining. This can provide a permanent family for the child without terminating the parents’ parental rights.
Finally, standby guardianship differs from traditional guardianship in that the parent keeps much of their authority over the child. Many states developed these laws specifically to address the needs of parents with HIV/AIDS, other disabling conditions, or terminal illnesses who still want to plan a legally secure future for their children. Child Welfare Information Gateway in local states also offers summaries of state statutes in its publication dealing with Standby Guardianships.
When Do I Need to Contact a Lawyer?
If you are in a situation where you believe you need assistance from s guardianship. Assessing your options and seeing what best suits your needs is important. There are permanent life repercussions for signing up for guardianship, requiring significant research before deciding on it. These issues can be complex and may require the guidance of a qualified family law attorney who can research the law for you.
Therefore, seeking a guardianship attorney in the area with family law experience is recommended to assist you further in the process. Your attorney can provide you with the guidance needed for your particular family law needs. They can also keep you updated regarding any changes in the law that might affect your legal rights or options.