Guardianship is when a judge, often in Probate Court, awards a responsible, capable adult custody of a minor child, power over the child’s estate, or both. A guardian of the person is legally responsible for the child’s care and welfare when there is no parent willing or able to do so.
There are two types of guardianship of a minor child: guardianship of a person and guardianship of the estate, or property. One guardian can be responsible for both the child and the estate. The judge may appoint a guardian based on the parents’ wishes; petition(s) for appointment of guardianship; court investigations; the child’s wishes (if 12 or older); and, ultimately, the person best suited to raise the child
Guardianship of a Person
In a guardianship of a person, the guardian has full legal and physical custody of the child and can make all the decisions about the physical care of the child that a parent would make. Once custody is obtained, it would be up to the guardian to ensure the child’s health, welfare, and safety needs are met. This includes making all educational and medical decisions for the child; providing the child with food, shelter and clothing; and stepping into the role of a parent.
A guardianship of the person is sometimes needed when one or both of the parents are not able to care for the child. A guardianship of the person is most likely to be granted when a natural parent nominates the guardian, or the parent is unable to care for the child due to neglect, abuse or abandonment. A guardian can be a relative, friend of the family, or other people suitable to raise the child can petition to be a legal guardian.
Since a guardian has the legal right to make decisions on behalf of the child, compliance with statutory requirements is very important. A court investigator will notify other relatives or persons of interest, conduct interviews and then submit their recommendation to the court. The court will hold a hearing in which the judge will review the evidence, then may or may not appoint a guardian, depending on the circumstances.
Guardianship of the Estate
A child may need a guardian of the estate if he or she inherits money or assets that require management until the age of eighteen. In most cases, the court appoints the surviving parent to be the guardian of the child’s estate. Depending on the court’s findings upon investigation, the judge may appoint the same person to be the guardian of both the person and of the estate, or appoint two different people.
The judge may authorize the guardian to spend the child’s assets for the health, maintenance, education and support of the minor child. In cases where a minor is to receive an inheritance, personal injury award or proceeds of insurance from a deceased family member it may be necessary that the minor’s parent(s) or another responsible adult be appointed by the court as a guardian of the minor’s estate before the insurance company or executor of the estate which is paying the inheritance will deliver the funds for the minor. This may occur even if one or both parents are alive especially in cases where insurance proceeds are to be paid.
If a guardianship of the estate is needed, you will need an experienced lawyer to set it up, and represent the guardian of the estate as there are very crucial laws and rules that must be followed by the guardian to protect the child’s assets. An experienced lawyer at the Boesch Law Group can make sure that the guardian of the estate does everything correctly.
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