The Difference in Probate & Family Court Guardianship

by Karyn Maier
    Guardianships are awarded by either a family or probate court.

    Guardianships are awarded by either a family or probate court.

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    Probate court handles issues relating to estate administration and the distribution of assets after death. Under Article V of the Uniform Probate Code, a probate court can also appoint guardians of minors and incapacitated persons. Family courts, which are governed by state and local laws, deal with matters relating to family law. In certain jurisdictions, this court also has authority to appoint guardianships. There are, however, minor differences in probate and family court guardianships.

    Probate Guardianship of Minors

    In some jurisdictions, guardianships of minor children are handled by a probate court instead of a family court, even when one or both parents are still living. In California, for instance, the custody of a child under the age of 18 is granted to an adult relative or other non-parent adult by a probate court. Probate guardianship may also be granted to an individual or agency to manage a minor’s property. When guardianship involves only custody, the court awards guardianship of the person. When guardianship includes property management, the court awards guardianship of the estate.

    Family Court Guardianships

    In many jurisdictions, such as New York, a petition for the guardianship of a minor is heard in family court. Guardianship may be temporary or given “standby” status, meaning guardianship takes effect at a future date in the event the natural parent or parents become unable to care for the child. Also, there is a specialized type of guardianship proceeding called PINS that is considered a family court matter. PINS stands for “Person In Need of Supervision,” defined as a minor who is frequently truant from school, engages in destructive or dangerous behavior or is disrespectful toward parents and other authority figures.

    Probate Guardianships of Adults

    A probate court can appoint a guardian for an incapacitated adult. This is defined as someone who is unable to receive or interpret information to form or communicate decisions that affect the person’s physical health or safety. In some jurisdictions, such as California, the guardianship of an adult person or the person’s property is referred to as a conservatorship and is decided by a probate court.

    Primary Difference

    Generally, guardianships awarded in family court involve appointing a caregiver for a minor to make decisions that affect the child’s education, medical status or financial affairs. Guardianships granted by a probate court may also address the guardianship of a child, the child’s property or both. The guardianship of an adult -- or conservatorship in some jurisdictions -- is a matter for probate court.

    About the Author

    Karyn Maier has been a full-time freelance writer since 1992 specializing in health, particularly botanical therapies. She has written many feature articles and columns for numerous national magazines, including "Better Nutrition," "Your Health" and "Mother Earth News," and she has authored numerous natural health-related books currently published in four languages. She also has more than 10 years' experience as a legal assistant.

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