Guardianship of Minors
By FindLaw Staff | Legally reviewed by Aisha Success, Esq. | Last reviewed May 16, 2023
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Parents are usually their child's default legal guardians. This means they are their child's primary physical and legal custodian. They are responsible for making decisions to ensure their child's well-being. The decisions may include medical care, child support, and custody of the child.
Sometimes, a child's parents cannot make decisions in their child's best interests. If that happens, a child may need a different adult to make decisions for their well-being. One option is a guardian of a minor, one type of guardianship. Legal guardianship is a legal relationship established by court order.
A guardian is someone authorized to make critical decisions for an incapacitated person. An incapacitated person cannot make decisions for themselves, usually due to illness or injury. In the case of a minor, their age is an incapacity. A child cannot enroll in school or get medical treatment on their own. A guardian may be necessary if a child's parent or parents cannot care for them.
This article will explore the guardian selection process, the guardian's responsibilities, and the guardianship's termination.
The Difference Between Legal Guardianship and Custody
It is easy to confuse the terms "legal guardianship" and "custody." Both terms relate to children but differ based on the person involved in either relationship.
In legal guardianship, a different adult, not the minor child's parent, has the legal authority to make decisions for the child.
Custody usually involves a child's parent and is often used in the context of a divorce. When parents divorce, they can split their child's physical custody and legal custody or make other custody arrangements.
When Is a Guardian Necessary for a Minor?
A parent may be unable to care for their child's needs for many reasons, such as:
- Medical illness
- Child abuse
- Mental health issues
In the case of child abuse, social services will remove the minor child from the care and supervision of their biological parent or parents, pending an investigation. Often, the child goes into the foster care system. The parent may lose physical and legal custody of their child. Despite these circumstances, a child still needs housing, education, and healthcare.
How Courts Choose a Minor's Guardian
Once a court determines the minor's parents are incapable of caring for their child, a guardianship case begins. The most critical consideration in selecting a guardian of a minor is the best interests of the child.
The court wants to reduce harm and trauma to a child removed from their parent's care. Courts prefer to choose a guardian with ties to the child, such as a family member. Selecting someone the child already knows may ease their anxiety and help them adjust to a new home.
Interested parties can file guardianship petitions in either family court or probate court. Guardianship proceedings begin with filing a petition for letters of guardianship and paying a filing fee. The interested party may request a waiver if the filing fee is too expensive.
The court will schedule at least one hearing and take evidence, including affidavits. The court will also consider the proposed guardian's character, history, and ability to care for the child. A court may enlist the help of a court investigator to check the proposed guardian's background.
The court examines the proposed guardian's history because this person makes essential decisions for the minor child. Guardians are court-appointed to decide on the minor's medical care and finances. They are also responsible for the child's welfare.
Once the court grants the petition for letters of guardianship, it will order an appointment of a guardian via court order. The court can choose between guardianship of the person and guardianship of the estate. The court can also appoint one person to fulfill both roles, or it can establish co-guardians. A guardian of the person handles all decisions except decisions related to finances. A guardian of the estate manages the ward's finances and property.
While parental rights do not terminate in the guardianship process, the legal guardian is the only person who can make decisions for the minor child. Depending on the circumstances, the parent(s) may visit and maintain a relationship with their child.
Roles and Responsibilities of a Child's Guardian
The guardianship of a minor is a serious role. A guardian is more than a caregiver—the child depends on the guardian. The guardian takes care of the child's financial, physical, and emotional well-being.
A guardian must:
- Provide a legal home for the minor child
- Provide financial support for the child
- Enroll their school-age ward in public or private school
- Apply for public benefits, including social security, for a minor if needed
- Get healthcare for the child
- Get legal advice for the child, if necessary
- Bring a lawsuit on behalf of the minor, if necessary
- Manage the minor's estate, if needed
The guardian also receives and manages any monies due to the minor for their care or support. The guardian must maintain, account for, and preserve any excess funds. The guardian must look after the minor's personal property. They must enroll the ward in school and ensure they receive a proper education.
The guardian authorizes any necessary medical care or other care for the well-being of the minor child. They can get mental health treatment if necessary. Generally, the guardian provides whatever care parents give to a child.
Termination of a Minor Guardianship
There are several ways a guardianship ends. Here are a few:
- If the child dies
- When the child reaches the age of majority (usually 18 years of age)
- In the case of a guardian of the estate, termination occurs when the minor child's assets are exhausted
- The guardian neglected their duty and responsibilities to the ward
- The court determines that legal guardianship is no longer beneficial for the child
In cases where the guardian neglects their duties and responsibilities to the minor child, the court will appoint a new guardian. The guardianship process will begin again with a guardianship petition.
Get Legal Help With Your Minor Guardianship
If you are considering filing a guardianship petition, seek legal advice. A qualified lawyer can help you navigate the complexities of the guardianship process. Contact a qualified, local family law attorney today to learn more.
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Contact a qualified family law attorney to make sure your rights are protected.