What is Guardianship? Guardianship is legal authority granted by a court over a child and/or the childís property. There are several different types of guardianship as outlined below.
Types of Guardianship
The types of guardianship include:
1. Guardian of the Person. Guardianship of the child which gives the guardian control over the childís custody or placement, medical care, education, and general well being, but no control over the childís estate.
2. Guardian of the Estate. Guardianship of the childís financial affairs and property, including inheritances, money, real estate, personal injury awards, etc., but no control over custody of the child.
3. General Guardian. When a guardian is granted both guardianship of the person and guardianship of the estate. A General Guardian may make all decisions for the child.
What are the Duties of a Child Guardian?
A court appointed Guardian of the Person has certain duties outlined by the court. For example, the guardian may be required to file a plan of care with the court which provides information about the health and physical well being of the child. Court appointed Guardians of the Estate are usually required to perform the following duties: 1. Post a surety bond. Guardians are sometimes required to post a surety bond as protection for the wardís financial assets to insure against any misconduct by the guardian. See
lump sum inheritance.2. Perform record keeping. Guardians are required to keep accurate records of each transaction affecting the childís estate, including records of income, bank statements, cancelled checks, and receipts. 3. Submit accountings. A guardian is accountable to the court for all property entrusted to him. A guardian of a childís estate is required to file an inventory of the wardís assets and periodic accountings with the probate court showing expenditures. If a guardian fails to file these accountings within the deadlines, the guardian may be removed.If you are appointed guardian of a child or a childís estate and are unsure about your duties, consult a lawyer. See finding an attorney. There are serious consequences for failure to comply with fiduciary duties, including loss of the guardianship and criminal penalties. Every state has its own distinct laws regarding guardianship of children and their property. To find guardianship laws for your state, go to
If You Fail to Make a Will
If you fail to make a will appointing a guardian for your child and die before your child becomes an adult, your child could be placed in the care of a court appointed guardian rather than the person you would have chosen to raise your child. See
Dying Without a Will.When you make an estate plan, you can let the court know your preferences on how your child should be raised. Naming a guardian is one of the most important reasons to make a will. The steps you need to take are outlined in our
Estate Planning Guide for Parents.
Types of Guardians for Minor Children
What is a Guardian Ad Litem?A guardian ad litem is a guardian appointed by the court to represent the interests of a minor child. A guardian ad litem may be appointed to represent a childís interests in litigation.What is a Testamentary Guardian?
A testamentary guardian is an individual named in a parentís last will to be guardian of the parentís minor child. If you are named as guardian in the will of a deceased parent, the will must be administered through probate and you must formally qualify as guardian in accordance with applicable court rules before you will be granted guardianship.
When is Guardianship Necessary?
If a childís parents are living, a guardian of the childís estate may be necessary when the child inherits property through a will or intestate succession, receives the proceeds of a life insurance policy, or receives a personal injury judgment or settlement. If a childís parents are deceased, incapacitated, incarcerated or unavailable, a guardian for a child may be necessary for the physical custody and care of the child, as well as to manage the childís property. For information on putting money in trust for children, see
estate planning trusts.
How is Guardianship of a Minor Granted?
A guardian can only be appointed by a court with jurisdiction over the child or the childís estate. A person who believes a child is in need of a legal guardian can petition the court for guardianship. Also, when a parent dies leaving a will nominating a child guardian, the will is submitted for probate and the court will determine who should be appointed guardian. While the individual named as guardian in the will is not automatically appointed, if the named guardian is qualified and the court finds no reason the individual should not serve, the court will appoint the deceased parentís choice of guardian. However, if the court finds it is not in the childís best interest to have the person named in the will be granted custody, the court will appoint someone else.For instructions on how to write a letter explaining your choice of guardian for your minor children, and a sample guardianship form letter, go to
At What Age Does a Minor Gain Control Over Property Subject to a Guardianship?
When a child receives an inheritance pursuant to a will, receives life insurance proceeds, or receives property pursuant to a personal injury settlement that becomes subject to a court appointed guardianship, the child generally must be given authority to control his own property when he or she reaches age 18 or the age of majority under state laws.
Do You Need an Attorney to Seek Guardianship
Petitioning for guardianship is a complex legal process. In most states, you need an attorney to petition for guardianship, present information at the court hearing, prepare a court order of appointment, and complete other steps in the guardianship process. In some states, it is mandatory you have an attorney to petition for guardianship.
Minor Children and Estate Planning
To read more articles related to guardianship of minor children, see our page on children and estate planning.
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