Family Law Attorney
Nature of Guardianship FAQ
Frequently asked questions explaining children’s guardianships, including the difference between guardianship and adoption.
- What does a guardian do?
- What is the difference between a guardianship and an adoption?
- When does a guardianship end?
- What is a guardian ad litem?
- If a child lives with me, do I need a guardianship?
- Is it true that parents may need a guardianship of their own child?
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’s assets, although sometimes a second person (often called a “guardian of the estate”) is appointed for this purpose.
A guardianship establishes a legal relationship between a child and an adult who isn’t the child’s parent, but it does not end the legal relationship between the child and the child’s biological parents. For example, the biological parents are still 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.
On the other hand, an adoption permanently changes the relationship between the child and the adults 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 usually has no right to inherit.
A guardianship ordinarily lasts until the earliest of these events:
– the child reaches legal age (usually 18)
– 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 if necessary.
A guardian ad litem is a person appointed by the court to stand in the shoes of a minor in a court proceeding in which the minor has some interest. The court can also appoint a guardian ad litem for an adult who can’t care for him- or herself. Often, the guardian ad litem is a parent, close relative, or attorney. Some states also authorize the appointment of a guardian ad litem to represent a child’s interests in a divorce case that involves custody issues.
If a guardian ad litem is not an attorney, the minor or disabled adult is frequently represented by an attorney as well.
You won’t need a guardianship if the child is only staying with you for a few weeks or months. But anyone who anticipates caring for a child for a period of years will probably need a legal guardianship. Without this legal arrangement, you may have trouble registering the child in school, arranging for medical care, and obtaining benefits on the child’s behalf. In addition, you’ll have no right to keep the child if his parents want him back — even if you think they’re incapable of caring for him properly.
If You Want to Avoid a Formal Guardianship
An adult who has physical custody of a child may have reasons for not wanting to become 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, however, are 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 the child’s behalf without going to court. Research the laws in your state or talk to a knowledgeable family law attorney to find out whether there are ways for you to care for a child that don’t involve becoming a legal guardian.
It’s strange but true: sometimes parents need to establish a particular type of guardianship called a “guardianship of the estate” to handle their own child’s finances — even if the child lives with them. This situation usually arises when significant amounts of property (at least $5,000 in most states) are given directly to a child.
Understandably, institutions and lawyers are reluctant to turn assets over to parents when they were intended for a child. A guardianship of the estate relieves the institution from liability, and the parents are directly accountable to a court to show how funds are spent and invested.
Example: The Thompsons lived next door to an elderly widow, who was extremely fond of their small daughter. When the widow died, she left her house to little Suzy Thompson. The lawyer handling the widow’s estate suggests that Suzy’s parents go to court to establish a guardianship of their child’s estate. The house is then transferred into the name of Suzy’s guardianship estate, which her parents manage until she reaches adulthood.
While this system is effective in protecting children’s assets from unscrupulous parents, setting up a formal guardianship of the estate involves time and money that well-meaning parents sometimes find burdensome. For this reason, all states have passed laws to make it easier to give money or property to children. These laws provide simple, inexpensive procedures by which gifts to minors (typically up to $10,000) can be managed by their parents without setting up formal guardianships of the estate. A gift-giver must simply name, in his or her will or in a trust document, someone to manage the gift until the child reaches adulthood. No court involvement is required.
Copyright 2004 Nolo
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