Nature of Guardianship FAQ

Frequently asked questions explaining guardianships of children, including the guardian's duties, the difference between guardianship and adoption, and more.

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What does a guardian do?

Typically, a guardian takes care of a child's personal needs, including shelter, education and medical care. A guardian may also provide financial management for a child, though sometimes a second person (often called a "conservator" or "guardian of the estate") is appointed for this purpose.

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What is the difference between a guardianship and an adoption?

An adoption permanently changes the relationship between the adults and child involved. The adopting adults legally become the child's parents. The biological parent (if living) gives up all parental rights and obligations to the child, including the responsibility to pay child support. If a biological parent dies without a will, the child has no right to inherit.

Although a guardianship establishes a legal relationship between a child and adult, it does not sever the legal relationship between the biological parents and the child. For example, the biological parents are legally required to provide financial support for the child. And if a biological parent dies without a will, the child has certain automatic inheritance rights.

If You Want To Avoid a Formal Guardianship

An adult who has physical custody of a child may have strong reasons to avoid becoming a legal guardian -- for example:

  • The caretaker expects that the child's parents will not consent to a legal guardianship.
  • Dynamics between family members are such that filing for a guardianship might set off a battle for legal custody. (This would be especially likely where a stepparent and one natural parent care for a child.)
  • The caretaker doesn't want his or her personal life scrutinized in court or by a court-appointed investigator.

Some adults try to slide by and raise children (often grandchildren or other relatives) without any legal court authorization. If you go this route, you could run into problems with institutions that want authority from a parent or court-appointed legal guardian. Some communities and institutions are, however, very accommodating of people who are bringing up someone else's children. California, for example, has created a form that gives a nonparent permission to enroll a child in school and make medical decisions on his or her behalf without going to court. Research the laws for your state or talk to a knowledgeable family law attorney to find out whether there are ways for you to care for a child short of becoming a legal guardian.

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When does a guardianship end?

A guardianship ordinarily lasts until the earliest of these events:

  • the child reaches legal age
  • the child dies
  • the child's assets are used up (if the guardianship was set up solely for the purpose of handling the child's finances), or
  • a judge determines that a guardianship is no longer necessary.

Even if a guardianship remains in force, a guardian may step down from his or her role with permission from the court. In that case, a judge will appoint a replacement guardian.

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What is a guardian ad litem?

If a party in a lawsuit is a minor or an adult unable to legally care for herself, the court must appoint a person to protect and manage the person's interests in any legal proceedings that directly affect her. That person is called a guardian ad litem and is often, although not always, a parent or close relative, or an attorney. Twenty-five states also authorize the appointment of a guardian ad litem to represent the child's interests, without the child actually becoming a party to the case, when custody is an issue.

If a guardian ad litem is not an attorney, the minor or disabled adult is frequently represented by an attorney as well. Both the guardian ad litem and the attorney are to act in and articulate the best interests of the minor or disabled adult.

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Copyright 2004 Nolo