The legal dictionary describes a guardian as a person appointed by a judge to take care of a minor child, also known as the ward or incompetent adult. They are assigned to manage that person’s affairs. To become a guardian, either the party intending to be the guardian or another family member, a close friend, or a local official responsible for the child’s welfare will request the court to appoint the guardian. But in the case of a minor, the guardianship remains under court supervision until the child reaches 18.
However, the judge does not need to honor that request, although they usually do. Unfortunately, a parent must often petition to become the guardian of their child’s “estate” if the child inherits or receives a gift of substantial assets. This also includes the situation in which a parent gives their child an interest in real property or stocks.
Generally, anyone (except a minor) willing to take on the responsibility can be appointed. Namely, the guardian may be a spouse, relative, friend, professional, or public guardian.
For instance, there is a preference in Alaska law for appointing a family member or a friend as the guardian. When a family member or friend is unavailable or willing to be the guardian, the court will appoint a private professional or public guardian.
A private, professional guardian will provide these services for a fee, usually charging on an hourly basis. Sometimes, the person needing a guardian cannot pay a private, professional guardian. In these situations, the court can appoint a public guardian who charges fees based on a sliding scale at the Office of Public Advocacy.
Can There Be Co-Guardians?
The court can appoint co-guardians who are two different people in agreement to be the guardians. Usually, the co-guardians are mandated to make decisions together about the ward, and both need to sign financial documents about the finances unless the appointment specifies that each co-guardian can make decisions or sign documents separately.
Both co-guardians must meet the education requirement. The co-guardians should communicate strongly and trust each other because they must cooperate to make decisions in the ward’s best interests.
What Does a Guardian Do?
Typically regarding a minor or a child, guardians fulfill the role of a parent for a child who is not their own. However, when a child has significant medical needs or financial assets, the child’s parent may obtain guardianship over the child or the child’s estate.
Usually, a guardian’s responsibilities include providing for the child’s care and day-to-day needs, such as food, clothing, shelter, education, and medical care. Guardians over a child’s estate oversee a child’s finances and are responsible for safeguarding funds until a child reaches age 18.
Remember that the family in question decides who should be their loved one’s guardian, but in some cases, the court takes it upon itself to make that decision for them. If you are selected to be someone’s legal guardian by your family or the courts, you must understand the legal responsibility for signing up for that particular role. For example, in Maryland, if you are assigned as a guardian for another person’s property or money, you are also considered a fiduciary or trustee.
For instance, below are some of the responsibilities a legal guardian undertakes in Maryland:
- You must act only in the individual’s best interest because they are unable to do so themselves fully;
- You must diligently manage the individual’s money and property, as you are responsible for making sure all their finances are proper and well-kept;
- You must keep the individual’s money or property separate from your own, as you do not own it. You are merely responsible for ensuring all finances and property are in a healthy financial situation and;
- You must maintain efficient records of all money and property in case the status of either is questioned.
Becoming another individual’s legal guardian is a tremendous task. You must abide by all the rules and regulations that come along with it. If you are selected to be someone’s guardian, it implies that you are a trusted person. Guardians owe a “fiduciary duty,” which means that guardians owe a duty of trust and must act in a manner that furthers the individual’s best interests. Both guardians of the person and the estate are trusted people who will do the right thing for the minor or the individual.
Guardians cannot raid the child’s money or assets. They typically require the court’s permission to move out of their area. Moreover, a guardian of the person is held to a high standard of raising the child. Legal guardians can invest in the child and hire appropriate people to protect the child’s assets.
Furthermore, the guardians can make decisions for the child, enroll the child in activities such as sports and music, and travel with the child. The guardian may travel out of state or country with the child depending on the court order.
What is a Guardian Ad Litem?
Guardian ad litems (GALs) are persons appointed by a judge to determine a child’s best interests, for instance, in a custody case. Unlike the types of legal guardianships discussed earlier, guardian ad litems are not responsible for the child’s day-to-day needs.
Instead, guardian ad litems are a child’s perspective in custody proceedings. A judge may assign a GAL in divorce, parental termination, or adoption cases to determine the custody arrangement best suited to the child’s needs.
Why Do Courts Appoint Legal Guardians for a Minor?
A court may assign a legal guardian during your lifetime if, for some reason, you cannot raise your child. This could occur if:
- You cannot raise the child now, and someone else should raise the child for you, whether you agree to this or not;
- A court terminates your parental rights, and the father is unavailable;
- You will be away for a while or are serving in the army;
- You are seriously ill, incapacitated, or unfit to raise the child due to addiction, child neglect or abuse, or domestic violence in the household and;
- You are incarcerated, and no other parent can raise the child.
When Does a Guardianship End?
Guardianships can terminate according to a guardianship agreement, court order, or automatically when certain events take place. For instance, a guardianship order may set a one-year time frame over guardianship. In that case, the guardianship would terminate automatically at the year mark.
More often, guardianships are left open-ended and remain so until one of the following events happens:
- The guardian resigns;
- The child reaches the legal age of majority (usually 18);
- The child or the guardian passes away;
- The child’s assets have been depleted;
- A judge determines that the guardianship is no longer necessary, or and;
- A judge determines that guardianship no longer serves the child’s best interests.
For example, a judge will select a new guardian if a guardian requests to be released from guardianship. In some cases where a guardian has misused the child’s assets or allowed or committed abuse, a judge will remove a guardian for cause because the guardianship no longer serves the child’s best interests.
When Do I Need To Contact a Lawyer?
If you are considering obtaining a legal guardian in your life. It may be useful to research the local regulations on the responsibilities of a guardian. It may be helpful to seek an experienced local guardianship lawyer to assist you further.