I’ve Been Named as a Guardian. What Do I Do Now?

Gabriel Katzner - September 7, 2020 - Guardianship
San Diego Estate Planning Attorney
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A guardian is someone who cares for a person who needs special protection, often a minor child. Parents can nominate a guardian in their will, but a court usually confirms and appoints the guardian after both parents have passed away. If the parents are still alive but are very ill or unable to care for the child for some other reason, a court can appoint a person nominated by the parents. If a guardian has not been nominated, the court will appoint a person it believes will act in the child’s best interests, often a family member or friend who is familiar with the child. 

A guardianship is an important responsibility that should not be accepted lightly. Here are a few factors to consider if someone has asked you to assume a guardian role.

What Are the Responsibilities of a Guardian?

 A guardian’s duties, responsibilities, and powers are determined by state law. In all states, guardians are considered fiduciaries and therefore have a duty to act in the child’s best interests at all times. A guardian’s specific responsibilities are similar to those of parents:

  • provide food, clothing, and a home for the child (either with the guardian or another caretaker)
  • receive and maintain money owed to the child for care or support
  • apply for government benefits
  • bring a lawsuit on the child’s behalf, if necessary
  • maintain, account for, and preserve any funds exceeding the amount needed for the child’s support
  • maintain the child’s personal property
  • ensure that the child receives a proper education
  • authorize medical care needed for the child’s health and well-being

Note: A guardian is not legally obligated to provide for the child from the guardian’s own funds. In addition, a guardian must obtain court approval before changing the child’s place of residence to another state.

How Long Does a Guardianship Last?

A guardianship of a minor child ends when the child reaches the age of majority under state law, usually eighteen or twenty-one. A guardianship of a child also terminates if the child passes away. If the guardianship is no longer needed—for example, if a parent resumes the ability to care for the child—the court may remove the guardian. If a guardian is no longer able to serve, he or she must file a petition to resign, and the court will appoint a replacement guardian. This may be an alternate or successor nominated by the child’s parent.

Is a Guardianship the Same as an Adoption?

Unlike an adoption, in which the parents permanently relinquish all parental rights and obligations, a guardianship does not terminate the legal relationship between the child and parents. Rather, the guardianship is a legal relationship that gives the guardian certain rights and obligations specified by state law.

Note: A guardian of a person is different from a guardian of an estate (also called a conservator). A conservator is appointed by a court to manage and protect a child’s assets if they are substantial. A conservatorship may be required if the child owns money or property valued at more than a specific amount set by state law.

Is a Legal Guardianship Really Necessary?

Yes. If you will be caring for a child for an extended period of time, you should become the child’s legal guardian. Otherwise, you will have difficulty authorizing medical care and enrolling the child in school.

If a family member or friend wishes to name you as a guardian for a child, seriously consider your available time, patience, and ability to take on this role. While it can be rewarding to invest in the life of a child, you should decline to accept the role if you can adequately perform your responsibilities. But be aware that finding a replacement will be difficult if the parents have not nominated an alternative, and the person the court appoints may not be someone the child’s parents would have wanted to care for their beloved child. 

We Are Here to Help

If you have been appointed as a guardian for a child, we can answer any questions you may have about your responsibilities. We can also help if you need to resign as a guardian due to changed circumstances. Please contact us today to set up a meeting. We are happy to meet with you by phone or video conference if you prefer.

 

You can use the link below to schedule a call with Gabriel Katzner, or just call us at 855.528.9637 to learn more about how best to plan today to protect those most important to you




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