Guardianship of a Child
A guardianship is legal authority granted by a court over a child and/or the child’s property. There are several different types of guardianship. Depending on the child’s situation, the guardianship may be:
Guardian of the Person. This is guardianship of the child which gives the guardian control over the child’s custody or placement, medical care, education, and general well being, but no control over the child’s estate.
Guardian of the Estate. This is guardianship of the child’s financial affairs and property, including any inheritance, money, real estate, personal injury award, etc., but no control over the custody of the child.
General Guardian. When a guardian is granted both guardianship of the person and guardianship of the estate. A General Guardian may make all decisions for the child.
What are the Duties of a Court-Appointed Guardian?
As a court-appointed Guardian of the Person, you will have certain duties as outlined by the court. For example, you may be required to file a plan of care with the court which provides information about the health and physical well being of the child.
Court-appointed Guardians of the Estate, are usually required to perform the following duties:
Post a surety bond. Guardians are sometimes required to post a surety bond as protection for the ward’s financial assets to insure against any misconduct by the guardian.
Perform record-keeping. Guardians are required to keep accurate records of each transaction affecting the child’s estate, including records of income, bank statements, cancelled checks, and receipts.
Submit accountings. A guardian is accountable to the court for all property entrusted to him. As a guardian of a child’s estate, you are required to file an inventory of the ward’s assets and periodic accountings with the probate court showing your expenditures. If you fail to file these accountings within the timelines required, you may be removed as guardian.
If you are appointed guardian of a child and/or a child’s estate and are unsure about your duties or how to perform them, consult an attorney. There are serious consequences for failure to comply with your fiduciary duties as a guardian, including loss of the guardianship and criminal penalties. Every state has its own distinct laws regarding guardianship of children and their property.
At What Age Does a Minor Gain Control Over Property Subject to a Guardianship?
When a child has inherited property under a will, received life insurance proceeds, or received property pursuant to a personal injury settlement that becomes subject to a court-appointed guardianship, the child generally must be given authority to control his own property when he or she reaches age 18 or the age of majority.
How is a Guardianship Granted?
A guardian can only be appointed by a court with jurisdiction over the child or the child’s estate. A person who believes a child is in need of a legal guardian can petition the court for guardianship. Also, when a parent dies leaving a will nominating a guardian for his or her child, the will is submitted for probate and the court will determine who should be appointed guardian of the child. While the individual named as guardian in the will is not automatically appointed, if the named guardian is qualified and the court finds no reason the individual should not serve, the court will appoint the deceased parent’s choice of guardian as named in the will. However, if the court finds it is not in the child’s best interest to have the person named in the will be granted custody of the child, the court will appoint someone else to serve as guardian.
When is Guardianship Necessary?
If a child’s parents are living, a guardian of the child’s estate may be necessary when the child inherits property through a will or intestate succession, receives the proceeds of a life insurance policy, or receives a personal injury judgment or settlement. If a child’s parents are deceased, incapacitated, incarcerated or unavailable, a guardian for a child may be necessary for the physical custody and care of the child, as well as to manage the child’s property.
What is a Guardian Ad Litem
A guardian ad litem is a guardian appointed by the court to represent the interests of a minor child. A guardian ad litem may be appointed to represent a child’s interests in litigation.
What Could Happen to Your Child if You Fail to Make a Will
If you fail to make a will appointing your choice of guardian for your child and you die before your child becomes an adult, your child could be placed in the care of a court appointed guardian rather than the person you would have chosen to raise your child. Making a will gives you the opportunity to let the court know the home you think would be best for your child in your absence. Naming a guardian is one of the most important reasons parents with minor children should make a will.
What is a Testamentary Guardian?
A testamentary guardian is an individual named in a parent’s last will to be guardian of the parent’s minor child. If you are named as guardian in the will of a deceased parent, the will must be administered through probate and you must formally qualify as guardian in accordance with applicable court rules before you will be granted guardianship of the deceased parent’s child.
Is an Attorney Required to Seek Guardianship of a Child?
Petitioning for guardianship of a child is a complex legal process. In most states, you need the assistance of an attorney to petition for guardianship, present information at the court hearing, prepare a court order of appointment, and complete other steps in the guardianship process. In some states it is mandatory that you have an attorney to petition for guardianship of a child.