How to Establish Guardianship of a Child: FAQ

Establishing guardianship of a child is a complex legal process. You may be a parent considering who will care for your children if you die. Or, you may be pursuing guardianship for a child in your life. Either way, establishing guardianship should prioritize the best interests of the child while recognizing certain parental rights. 

There are many reasons to establish guardianship of a child. A child's parents can name a guardian in a will to ensure their minor child has a guardian if they die prematurely. Or, a court may appoint a guardian for a child removed from their home for abuse and neglect.

Guardianship is necessary in these circumstances because a child cannot make their own legally binding decisions. A child has no legal right to obtain healthcare, make medical decisions, or open bank accounts alone.

This article explores frequently asked questions (FAQ) to help you better understand the process of establishing guardianship of a child.

What Does a Guardian Do?

A guardian is more than a caregiver. A court-appointed guardian has the legal authority to decide for the child if their parents cannot care for them by granting the guardian legal custody. A guardian may or may not have physical custody of the minor child.

The guardian makes decisions for the child according to a court order. They consent to medical treatment and mental health care. They also make financial decisions (conservator) for the child ("ward"), such as applying for social security or other government benefits.

Parental rights are not terminated in legal guardianship, even if the guardian has physical custody of the child.

When Is Legal Guardianship of a Child Necessary?

There are many circumstances when legal guardianship of a child is necessary. For example, an incarcerated parent may ask a family member to care for their child. Legal guardianship makes it easier for the family member to manage the child's financial affairs, enroll them in school, or take them to the doctor. They can also get social security benefits for the child.

In some instances, child protective services may remove the child from the home with a parent when there is actual or suspected abuse or neglect. This is for the well-being of the child. Parties may then initiate a guardianship case in court.

A family member or a close family friend may want to be the legal guardian. The guardianship process remains the same. A petition for legal guardianship must be filed before anyone can be the child's legal guardian.

What Is the Procedure for Establishing Guardianship of a Child?

According to state law, in most states, an interested party can establish guardianship of a child by filing a petition for guardianship. An interested person includes a family member, a social worker, a government agency, or a member of the ward's community. A filing fee should accompany the petition. The petition should explain why guardianship is necessary.

Once the case is open, the court may appoint a guardian ad litem to represent the best interests of the child. They do not represent the child. A guardian ad litem independently investigates the facts of the guardianship case and provides the court with an opinion. They will interview the minor child, their parents, the proposed guardian, and anyone else who can provide information.

Once the investigation is complete, the guardian ad litem prepares a report. The report includes recommendations for the type of guardianship, whether one is necessary, and who is the best person to serve as a guardian for the minor child. These recommendations are one factor the court uses to reach a decision. The court also looks at the background of the proposed guardian, including a criminal background check.

After approval of the guardianship petition, the court will issue an order establishing the guardianship of a minor.

Can I Appoint a Legal Guardian for My Children in My Estate Planning?

As part of their estate planning process, parents can name guardians for their children in their wills. If they cannot care for their children, their choice of guardian will be clear. Parents can appoint a guardian for their minor child or establish a guardian of the estate for their child.

A guardian of the estate is only responsible for the minor child's assets, such as an inheritance or real property. A guardian of the person (for a minor child) has decision-making powers over the child's finances and general well-being. The guardian of the minor child makes decisions for the child's welfare, including medical care, education, housing, and finances.

Naming a guardian in a will gives parents control over who will raise their child. They can pick a loved one or someone they trust, who also shares their values and can maintain custody of the child.

Parents should name a second guardian in their wills. This person can fulfill the role of guardian if the designated guardian cannot. A few reasons for the inability to raise the child could include death or incapacitation.

But remember the drawbacks unique to designating a guardian in a will. The parent's choice may not be honored under some circumstances. For example, in some states, when one parent dies, the other parent automatically gets custody unless proven unfit. In such a case, a probate court may refer the matter to a family court with jurisdiction to determine custody issues. This might happen if your co-parent were to contest the guardianship designation in your will.

Who Can Be a Legal Guardian?

When choosing a legal guardian, keep in mind that by law, the designated person must:

  • Be an adult
  • Be physically able to fulfill the responsibilities of a guardianship
  • Have ample time to care for your child or children
  • Able to afford to raise your children, using their income or with assets you leave for your child's or children's care

Do I Need To Explain My Choice of Legal Guardian?

Including a letter of explanation for the judge is a good idea. Judges use the "best interests of the child" standard, and a judge may want to know how the proposed guardian serves those interests. Judges consider the following:

  • The child's preference
  • Who can best fulfill the child's needs, stability, and continuous care
  • The relationship between the child and the potential legal guardian
  • The moral character, fitness, and conduct of the potential guardian

Can I Establish Guardianship of the Child Without Their Parent's Consent?

Generally, the court may approve guardianship of a minor child if:

  • Both parents consent to the guardianship unless only one is available to do so
  • The parents have abandoned the child
  • A judge finds it would be in the child's best interests to remove the child from the parent's custody

In cases where the parents are unfit, the judge will appoint a guardian. An interested party may not be the court's first choice of guardian. Courts want to keep families together, and a family member is often the first choice of guardian.

A Child Is Living With Me and I Am Providing All Their Care — Should I Establish Guardianship?

It depends on how long you plan to care for the child. Guardianship may be unnecessary if the child will live with you for a short time. Any longer than that, and you should consider guardianship.

As a legal guardian, handling specific tasks on the child's behalf will be much easier. These include enrolling them in school and obtaining medical care. It also includes registering them for social security and making financial decisions.

Without guardianship, you will have fewer legal rights if their parent attempts to regain custody. There's no guarantee that guardianship will allow you to continue caring for the child if their parent wants them back. Still, it does offer some level of permanency in the current situation.

Legal guardianship can ensure that the child's best interests are considered if a parent requests the child's return. Ultimately, a judge reviews the fitness of the guardian and all caregivers, and the decision is not subject to the whims of the parties.

What Documents Do I Need to Establish Guardianship of a Child?

The exact documents you need depend on your state and the specifics of your situation. Plan on gathering several documents for yourself, the child, or both. For example, you will likely need:

  • Court forms and filings
  • Medical records 
  • Financial records
  • Proof of identification (like a birth certificate or passport)

See FindLaw's Being a Guardian: Documents to Gather for a checklist of documents related to assets and costs.

Do Parents Have To Establish Guardianship Over Their Children's Property?

Yes, in some instances. When a minor child comes into large amounts of income and assets, parents must often establish guardianship of property (conservatorship). A guardian of property is a legal guardian who manages the income or assets on behalf of the minor child.

A parent must file a guardianship (conservatorship) petition before managing these assets. This protects the parents and the child from any misuse of income or assets.

What Are the Benefits of Establishing Guardianship of Property?

A guardianship of property (conservatorship) is one type of guardianship. It is essential for two reasons:

  • It gives the party who gave the child property freedom from liability if the child's parents misuse their child's assets
  • The guardians are accountable to the court for handling the ward's assets.

When a child receives valuable assets, perhaps through a will, they are often too young to manage their property or financial affairs. A bank could transfer the property to the parents. That could expose the bank to liability. It could also be easy for the parents to misuse the property. The same concept also applies to protecting the assets of an incapacitated adult.

After establishing guardianship of property (conservatorship), guardianship laws lower the liability of the bank or executor. The guardian must also prove to a court that they have made wise financial decisions. The court will order an insurance policy (bond) offering more protection to the child or incapacitated adult.

Are There Alternatives To the Guardianship of Property?

Establishing guardianship of property (conservatorship) can protect a minor or incapacitated adult's assets. It can also be an expensive, time-consuming process. It is a court-appointed position requiring a court order.

Most states have recognized this and enacted laws that make it easier for parents to manage gifts made to their children. These gifts are usually under a certain amount. A gift-giver can name someone to manage the gift until the child comes of age.

This process doesn't need any court intervention. The most significant amount of the gift varies from state to state, so be sure to check the laws where you live.

What Are the Responsibilities of Legal Guardianship?

It's challenging to be a minor's legal guardian. Guardians have many responsibilities. Like biological parents, they have to care for the child and make legally binding decisions for the minor child.

In most cases, you're taking on all the responsibilities of a parent when you become a guardian. Before taking on this role, consider the following questions:

  • Do I want the continuous duties of legal guardianship?
  • Am I ready to accept total liability for the child's actions?
  • Do I want to act as the legal parent of this child for the entirety of the guardianship?
  • Will the parents support my guardianship, or will they be hostile?
  • How will guardianship affect my family, health, job, and life?

Becoming the legal guardian of a child is a huge responsibility with a lot to consider. Think carefully about the questions above and plan accordingly. Remember that, generally speaking, the parent(s) may revoke the guardianship at any time.

Discuss Your Guardianship Concerns With an Attorney

Establishing guardianship of a minor is a complex legal process with implications for all parties involved. Legal guardians make decisions related to healthcare, finances, and personal property.

Choosing guardians for your children or becoming a guardian for a child are both life-changing decisions. You'll want to be sure you understand your state's laws and the responsibilities and limitations of guardianship. A qualified family law attorney in your area can help you navigate the guardianship process so you can make the most informed choice.

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Can I Solve This on My Own or Do I Need an Attorney?

  • Guardianship is always a court process
  • An attorney can help file a guardianship petition and represent your interests
  • Legal advice during the planning, court processes, and interviews is helpful
  • Your attorney can help you understand the final decision from the court

Get tailored advice for becoming or appointing a legal guardian. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Once new guardianship arrangements are in place, it’s an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will. Consider creating a financial power of attorney so your agent can pay bills and make sure your children are provided for. A health care directive explains your health care decisions. It takes the decision-making burden off your children when they become adults.

Start Planning