The Rights and Responsibilities of Guardianship

The Rights and Responsibilities of Guardianship

Requesting A Guardianship

When requesting that you be appointed as the guardian of a minor child, you must initially file a request or petition with the court.  Often, the court will order a hearing and require that all interested parties, including the parents and other relatives of the child, be given ample notice to respond to your request and/or attend the guardianship hearing.

Generally speaking, a guardianship must be filed in the state of the child’s primary residence, unless there are previous orders already in effect regarding the child.  If the child is Native American, has special needs, or is party to another child custody action, you may want to consult an attorney before moving forward.

In some cases, it may make more sense to file for temporary guardianship.  If the child needs immediate medical treatment, must be enrolled in school, or the child’s parent is also a minor, then temporary guardianship orders can be requested.  Additionally, if the both the child’s parents are dead, incarcerated, or incapacitated, the court can provide temporary emergency guardianship orders.  Even though the court has awarded you temporary guardianship, you must still file for a more formal guardianship order from the court.

Duties of a Guardianship

It is important to first determine with you have the means and the capability to care for the minor child before requesting a guardianship.  You may want to determine whether you want to have the same legal responsibilities as a parent, and you should take special care to note how the guardianship could impact your family dynamics.  Additionally, it is important to determine whether you are financial capable of supporting the child.  You should also consider how your appointment as guardian may affect the child’s other relatives, especially if those relatives feel strongly that they should be responsible for the care and wellbeing of the chid.

As the child’s guardian, you will be responsible for providing a residence for the child, and you will be required to keep the courts notified if you plan to leave the state of country.  You may also be required to request permission to relocate.  You will also be required to provide for the child’s education, including any special needs or tutoring.  All of the child’s medical and dental needs will be your responsibility, as are any counseling or mental health services.  You will also be required to report to the court regularly on the child’s health and wellbeing.

As a guardian, you will also be held legally responsible for the actions of the child, including any property damage that may result from their negligence.  You will not be allowed to let the child reside in another home, even with their parents, without permission from the court.  You will also be allowed to grant permission for the child to apply for a driver’s license and enlist in the US military, and you can grant permission for the child to be married.  You may also be entitled to financial support or other help from state and local agencies to aid in the care and support of the child.

Duties of Estate Guardianship

As the guardian of a child’s estate, you will be responsible for managing the child’s assets until the reach adulthood.  You will need to keep all the child’s property separate from your own, and you will not be allowed to receive payment from the child’s estate, give away or borrow money from the estate, or spend the estate’s money with prior permission from the court.

If you need to use some of the estate proceeds to care for the child, you will need to file a formal request with the court.  It is important that you keep accurate financial records detailing all aspects of the child’s estate management, including ay monies paid or collected, interest earned, money spent, and the date and purpose of every transaction.  You may also be required to file a regular accounting with the court that demonstrates you are effectively and efficiently managing the child’s estate.

Guardianship Alternatives

It may not always be necessary to request a guardianship from the courts if a minor child must be cared for by someone either than their parents.  In some cases, the parents can agree to let another adult care for their child, either though an affidavit of care of a minor child or a power of attorney for a minor child.  With a power of attorney, you can make some decisions about the child’s education and medical care, but you will probably need a guardianship or order from the court in order to add the child to your health insurance or to authorize extreme medical intervention.  Additionally, it is important to note that a Power of Attorney can be revoked at any time by either parent.

An affidavit of care of a minor child usually allows a nonparent to enroll a child in school and make some medical decisions for the child.  Because the affidavit is not always an official court form, some schools and hospitals will still require a court order or guardianship before allowing the non-parent to make decisions for the child.  An affidavit of care of a minor child can also be cancelled by the parents at any time.

Ending a Guardianship

A guardianship ends when the child reaches the age of 18, is adopted, enlists in the US military, or is emancipated by the court.  A guardianship also ends if the child dies before turning 18 or the court decides to terminate the guardianship. A court can terminate a guardianship at the request of the child (usually 13 or older), by request of the parents, or if the guardian requests the termination.

A guardian can resign from a guardianship, but the resignation must be formally requested of the court, and the court will usually require a hearing to determine if the termination is in the best interest of the child.  A termination of guardianship is usually granted if the courts determine that the termination will not impact the stability of the child’s home life or income, or if the parents can demonstrate that they have rehabilitated sufficiently to adequately care for the child.

In order to end a guardianship of estate, you will most likely be required to file a formal request with the court.  The court may also require you to submit a final accounting of the child’s estate and to demonstrate that your resignation will not adversely impact the child’s financial well being.

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