Guardian Instructions for Minor Guardianship

By David Carnes

Parents are considered the natural guardians of their biological or adopted children. If the parents are unable or unwilling to care for their child, however, the state may appoint a guardian if no suitable alternative for the care of the child exists. Although state laws vary, all states require guardians to be appointed by court order.

Parents are considered the natural guardians of their biological or adopted children. If the parents are unable or unwilling to care for their child, however, the state may appoint a guardian if no suitable alternative for the care of the child exists. Although state laws vary, all states require guardians to be appointed by court order.

The Petition

You initiate guardianship proceedings by filing a guardianship petition with a state court. Some states require you to file the petition with a district court, while other states require you to file it with a family court or probate court. Many states also require you to prepare an affidavit stating your relationship with the child and other required information. You must also prepare a summons and have the petition and summons served on the child's parents if they are alive and can be located. If the parents are not alive or you cannot locate them, you must serve anyone who has been given custody of the child. The state may also require that you serve the state child services agency as well.

Protect your loved ones. Start My Estate Plan

Guardian Qualifications

Although many states allow any qualified person to petition a court to appoint him guardian of a minor, courts generally prefer relatives, a social services agency or a person named in the parents' wills. In any case, the basic legal standard is the "best interests of the child." More specifically, to be appointed guardian you must show that you are financially and physically capable of caring for the child and that you are of good moral character. You may have to submit your criminal history or credit record to the court and undergo an investigation of your fitness for the position.

Parents

If the parents oppose the guardianship, they may call witnesses and present evidence unless their parental rights have already been terminated. If their parental rights have not been terminated, they may retain certain rights such as custody or visitation even after you are appointed guardian. Besides the parents, the child's other family members do have rights to object to your pursuit of guardianship. Although you do not need consent from other relatives if they are just interested parties, their objections could be detrimental to your pursuit of guardianship. If this happens, be sure to consult an attorney right away.

Powers and Duties

Although guardians are subject to powers and duties that roughly correspond to the relationship between a custodial parent and a child, a court has broad authority to tailor the authority of a guardian to the child's individual needs. Many states recognize two types of guardianships: guardianship of the estate and guardianship of the person. A guardian of the estate manages the child's finances, while a guardian of the person makes personal decisions such as where the child will live and where he will go to school. One party may be appointed to both types of guardianship simultaneously. You may be entitled to seek child support payments from the child's parents if their parental rights have not been terminated. Guardians can face criminal liability for neglecting their duties.

Protect your loved ones. Start My Estate Plan
Legal Guardianship in Wisconsin

References

Related articles

Legal Guardianship Statutes in Minnesota

A guardian is a person who is granted the legal right to make personal decisions on behalf of someone, known as a ward, who cannot effectively make them on his own. In Minnesota, guardians may not make most types of financial decisions on behalf of a ward -- for that, a conservator must be appointed. A state courts must appoint a guardian, whose rights and responsibilities are governed by state law. Minnesota's guardianship law is found in Article 5 of the Minnesota Uniform Probate Code.

Difference in Guardianship and Custodian

Custody and guardianship are two types of legal arrangements under which an adult assumes legal authority over and responsibility for the care of someone who cannot care for his own basic needs. Different types of custody and guardianship exist and laws vary by state. The most important difference between custody and guardianship relates to the degree of authority and responsibility vested in the caregiver.

Setting Up Guardianship in a Will

Probate courts appoint legal guardians to care for minor children if their parents die. A guardian ensures a child receives such things as housing, food, education and health care until he reaches the age of 18. Parents can nominate individuals to serve as guardians in their wills. Generally, judges follows parents' wishes by awarding guardianship to the parents' nominees. If a nominee is unable to serve, the court chooses another capable person to act. State laws regarding guardianship may vary.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

Legal Guardianship in Arizona

In Arizona, as in other states, an adult may obtain legal guardianship over a minor or an incapacitated adult with ...

Legal Guardianship in Colorado

A guardian is appointed by the court to make personal decisions on behalf of another person, known as the ward, when ...

Legal Guardianship Procedures

Guardianship is a legal relationship between two people: a guardian and a ward. The guardian is granted legal authority ...

The Rights & Responsibilities of a Temporary Guardian in Arkansas

A temporary guardian is a person appointed by the court to play the legal role of a child's parent, when parents are ...

Browse by category
Ready to Begin? GET STARTED