The Difference in Probate & Family Court Guardianship

By Karyn Maier

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.

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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.

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References

Related articles

Legal Guardianship in Alabama

A legal guardianship in Alabama is a court proceeding used to appoint someone to be responsible for the personal well-being of a minor or incapacitated adult. A person under a guardianship is called a ward. If the ward needs someone to manage his property or money, Alabama law allows for the appointment of a guardian of the estate, which in Alabama is known as a "conservator." Depending on circumstances, the same person can be appointed as guardian and conservator.

Missouri Statute on Guardianship

A legal guardian's relationship to a ward, who can be a minor or a disabled or incapacitated adult, is analogous to a parent's relationship to his child, with similar authority and responsibility. A proposed guardian must petition the probate division of the Missouri Circuit Court for a court order appointing him as guardian.

Missouri Probate Court Procedures

Missouri’s probate courts are divisions of the circuit courts; they handle probate issues including the administration of a deceased person’s estate. They also handle guardianships and conservatorships even when those issues are not connected to an estate administration case. Each county has a probate court division.

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