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what to do if you've been named a legal guardian by davis law group pc

What To Do if You’ve Been Named a Legal Guardian

March 18, 2022 Douglas Davis

The legal term “guardian” refers to someone who cares for another individual, often a minor child, who needs special protection for a variety of reasons.

Although parents of a minor child can name a legal guardian for their child in their will, typically a court must confirm and officially appoint that person to the status of guardian if both parents have passed away. However, there are some scenarios where a legal guardianship must be enacted even if one or both parents are still alive. For example, if both parents become very ill or are unable to care for the child for some other reason, a court will step in and appoint the 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.

Being a legal guardian for a minor child is an important responsibility—and privilege—that should not be undertaken lightly. If you’re wondering what this responsibility includes, here are a few factors you should consider if you’ve been asked to assume this position.

What Are a Guardian’s Responsibilities?

The guardianship statutes of each state set forth a guardian’s duties, responsibilities, and powers. Guardians are what’s called a fiduciary, which means their duty is 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 place for the child to live (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

Important note about finances: A guardian is not legally obligated to provide for the child from their own personal funds. In addition, a guardian must obtain court approval for certain actions—for example, changing the child’s place of residence to another state.

How Long Does a Guardianship Last?

There are certain events that typically end a guardianship. When a minor child reaches the age of adulthood under state law (usually eighteen or twenty-one), the guardianship will end. The responsibility also ends if the child passes away. If the guardianship is no longer needed—for example, if a parent becomes available to care for the child again—the court may remove the guardian. If a guardian is not able to take on and maintain the responsibilities of their role, they must file a petition to resign, and the court will appoint a replacement guardian—optimally, an alternate or successor guardian nominated by the child’s parent.

Is a Guardianship the Same as an Adoption?

No. Unlike an adoption, in which a child’s parents permanently relinquish all parental rights and obligations, a guardianship does not terminate the legal relationship between a child and the child’s parents. Rather, a guardianship is a legal relationship that gives the guardian the rights and obligations specified by state law.

Note: A guardian of a person is different from a guardian of an estate, frequently referred to as a conservator. A conservator is appointed by a court to manage and protect a child’s assets if there is a substantial amount of money or property involved. A conservatorship may be required if the child has money or property valued at more than a specific amount (e.g., $25,000), as set by state law.

Is a Legal Guardianship Really Necessary?

Yes. If you will be caring for a child who is not your own for an extended period of time, it is critical to become their legal guardian otherwise you may run into issues carrying out basic things like authorizing medical care and enrolling the child in school.

Being a guardian is an important responsibility. If a family member or friend wants to name you as the guardian for their child, you should seriously consider whether you have the time, patience and ability to take on this role. While it can be rewarding because it allows you to invest in the life of a child, you should be honest and decline to accept the role if you do not believe you can adequately perform the responsibilities of a guardian. If your family member or friend passes away without naming someone else as guardian in their will, additional time and expense will be required to determine who will replace you. Moreover, the person the court appoints may not be someone the child’s parents would have wanted to care for their child.

Davis Law Group Can Help

If you have been appointed as a guardian for a child, our experienced attorneys are available to answer any questions you may have about your responsibilities. We can also help if you need to resign as a child’s guardian due to changed circumstances. In any case, contact Davis Law Group today to set up a meeting. We are happy to meet with you in person, by phone, or video conference if you prefer.