What is Guardianship?


Many situations can arise where a child would need a Guardian. Guardian is a legal term that specifically applies to having legal, physical, and financial responsibility for a minor, who is formally referred to as the Ward. If the person who needs care and oversight is an adult, the title, and the applicable process, is called a Conservatorship, and establishes a Conservator. Guardians are created if the natural parents, married or not, can no longer provide the necessary care for a child. Also, guardianship can be temporary or permanent. This is not an exhaustive discussion of those situations, just the most common ones.


For single parents or families where both parents are in the armed forces, deployment, temporary reassignment or other orders can cause enough disruption in the family to consider having another family member temporarily help in the protection and care of their child. In such a scenario, the parent(s) might ask brothers, sisters, parents (grandparents of the child), to take over as temporary guardians. Their role as guardians would end, either automatically by agreement, or by filing for a court order, once the condition allowing the parent or parents to return to active parenting.


Another situation where guardians are helpful is when the parents have serious mental or emotional disabilities. In most cases, the parents of special needs adults continue to guide the activities and lives of their children. However, when special needs adults have a child they might need to have someone serve as the responsible adult supervising the health and well-fare of their offspring. These guardians usually remain permanent and are named as the result of unopposed (agreed) court proceedings.


Among the most difficult circumstances requiring a family member to serve as guardian arise when one or both of the parents are addicted to drugs and/or alcohol, are a chronic criminal, or are unwilling fulfill their parental role. In such situations, a case will often arise in the city or county in which the child resides, and a foster-parent is appointed. However, if one or more members of the parents’ family(ies) are willing and able to care for the child, they can pursue guardianship.


The vast majority of guardianships are established to have the legal authority to enroll a child in school, ensure medical care, sign them up for soccer and baseball, obtain driver’s licenses, help them apply for college and financial aid, etc. The permission to accomplish those functions in place of a parent comes from the Court’s Order Appointing Guardian and Letters of Guardianship. These are legal forms issued by the Probate Court and are recognized as the source of a guardian’s power to act in loco parentis (in place of a parent) for the child.


However, if a parent or deceased relative had significant wealth, the child may have an “estate” which would require guardianship to manage on behalf of the child, also known as “Guardian of the Person and Estate.” Such guardianships can be hotly contested, because members of a family may not trust each other to fairly and loyally carry out their duties to safeguard the financial affairs of the child while they are still young. Guardianships like these consistently appear in Probate Courts, as they may last for 18+ years, involve claims of mismanagement or misappropriation, disputes over accountings, and premature attempts by teenage wards to obtain release from the constraints of their guardian(s).


Many other situations and variables apply to guardianships. If your family or a friend has questions about guardianship and the process involved in establishing one, consultation with experienced legal counsel is essential. The duties and challenges of being a guardian can seem daunting, but there are countless benefits to helping a child in need.

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