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Guardianship Laws FAQ: When Is Guardianship Necessary?

If you're caring for a child that is not legally or biologically yours, there are options available to you. You may consider establishing legal guardianship of the child. This is an important step toward ensuring that the laws work for you in protecting the child's best interest.

You likely have a lot of questions. When is a guardianship necessary? How do I get one? What happens if I don't create a guardianship? Below, FindLaw answers these frequently asked questions related to when you do and do not need to establish guardianship.

I have a child living with me currently, and I'm providing all of their care — should I establish a guardianship?

It depends on how long you plan to care for the child. If the child is only going to live with you for a short time — a few weeks or months — then guardianship is probably unnecessary. Any longer than that and you should probably consider guardianship. With guardianship in place, you will have a much easier time handling certain tasks on the child's behalf. These tasks might include enrolling them in school, obtaining medical care, and registering for benefits.

Without guardianship, you will have fewer legal rights if their parent attempts to regain custody of him, even if you think that they are unfit. There's no guarantee that a guardianship will allow you to continue caring for the child if their parent wants them back, but it improves your odds.

I've heard that parents sometimes have to establish guardianship over the property of their own children. Is that true?

Strangely enough, it is. When children come into large amounts of income and/or assets, parents must sometimes establish what is known as a "guardianship of the estate." This is usually only necessary when children receive money or property in excess of around $5,000, but the amount varies depending on state laws.

What are the benefits of establishing guardianship of the estate?

A guardianship of the estate is important for two reasons:

  • It frees people and institutions from liability if they turn the money or property over to the child's parents and the parents subsequently misuse it
  • It subjects the parents' management of the property to a court's scrutiny

When a young child receives valuable property, perhaps through a will, they are often unprepared or too young for the responsibility of managing the property. If a bank or the executor of the estate simply transfers the property to the child's parents instead of the child, the parents could misuse the property, leaving the child with nothing when they reach adulthood. This could expose the bank or executor to a lawsuit from the child or their guardian.

If the parents establish guardianship of the estate, however, guardianship laws remove liability from the bank or executor. The parents will also have to prove to a court that they have wisely managed the property, which offers the child additional protection.

Are there alternatives to the guardianship of the estate?

While establishing guardianship of the estate can protect a minor child's assets, it can also be expensive and time-consuming to create. Most states have recognized this and enacted laws that make it easier for parents to manage gifts made to their children if they are under a certain amount.

A gift-giver usually only has to name someone to manage the gift until the child comes of age. This process doesn't require any court intervention. The maximum amount of the gift varies from state to state, so be sure to check the laws where you live.

Learn More About the Guardianship Laws in Your State From an Attorney

Guardianship is an important legal process that has lifelong implications for the parties involved, so it makes sense to do it properly.

If you are in a guardianship situation, or simply want to know more about the guardianship laws in your state, the best way to do so is by speaking with a qualified family law attorney in your area.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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