A legal guardian is someone who holds the legal authority of a person, property, or interest.
Legal guardianship is one of the options which are available to parents who are planning on the caretaking of their child in their absence due to a variety of situations, such as incarceration or illness. It helps parents to appoint a caregiver and give the caregiver certain legal rights for the subject matter.
Family lawyers are often asked about the guidelines that how family laws define legal guardianship and legal guardianship. However, there’s no single answer for it as every case and need is different. Let’s explore more in this guide:
- What is a legal guardian?
- Requirements of becoming a legal guardian
- Parents appointed guardians
- Does a legal guardian have greater rights than a biological parent?
- Guardianship rights
- Parental rights
- Legal Guardian VS Biological parent
- Termination of a guardianship
- Can you reverse or modify guardianship?
- What happens if parents die without determining a guardian?
- How can a family attorney help you in appointing a guardian?
What is a legal guardian?
A legal guardian works to protect the interest, property or has the authority to make the legal decisions for someone (especially minor or elderly people) who are not able to make decisions on their own regardless of the reason.
A court appoints a guardian over a minor or an individual (usually known as a ward) who is unable to bear his liabilities or become incapacitated due to his age, or disability. Legal guardians are also charged with the responsibilities to make legal and financial decisions for their ward(s) and to represent the ward’s interest to the best of their ability. Family laws and the requirement for becoming a legal guardian vary across states and depend mostly on the interest that why someone needs guardianship.
Is a parent legal guardian? What are the requirements for becoming a legal guardian, read further.
Requirements of becoming a legal guardian
From birth, parents are the legal guardian of a child and are recognized legally for the responsibility of a child under the age of 18. But oftentimes, situations do not remain the same for everyone.
At any age or time, anyone could be in the need of a legal guardian. Although, it consists of the circumstances and is mostly given to the group that is commonly thought to be minors. The state family court would appoint an adult legal guardian to a minor when the parents die, or surrender their rights over the child, abandon them, or else are unable to protect and care properly.
According to family law, there are two types of responsibilities that can be assigned to a legal guardian by the court.
Guardian of an individual: Where a guardian has the legal obligation to assist with the ward’s personal and physical needs. He or she has the right to consent legally on their ward’s behalf. In short, a legal guardian of an individual has the charge to provide shelter, food, education, clothing, and physical and medical needs. In case, if the parents of the child are alive, they still have the legal liability to continue providing financial support to the child.
Guardian of the estate: Where a guardian is responsible to maintain the financial assets of their ward until they become capable of maintaining them by themselves. A guardian of the estate is charged with the fiduciary duty of the financial assets to manage them properly.
Guardian ad Litem: Where a guardian represents the ward’s interests and right in the legal proceedings. The court often appoints guardian ad litem in probate matters, divorce cases, or where the minor is neglected towards his rights or had been the victim of abuse.
A court can appoint a guardian of an individual and estate roles separately to different individuals or these legal responsibilities can be given to one person only. But the court sees many factors before appointing someone as legal guardian of a minor. Such as:
- The child’s preference
- The ability of the suggested guardian to deliver the said interests
- Ability to deliver the proper care
- The character of the suggested guardian
- The relationship of the proposed guardian with the family of the child.
There can be more factors that need to be considered depending on the case and interest. As mentioned earlier, if the circumstances require, the court can appoint more than one person as a guardian. Once all the information is weighed by the court judge and the expert opinion has been taken, they can appoint a legal guardian for the child.
Parents appointed guardians
Parents can even appoint a guardian before the child comes into the world. Parents can name more than one individual as a legal guardian in their will if an unfortunate event occurs. Since 2014, parents can designate a legal guardian for their child even without a legal decree.
To officially designate a legal guardian for your child, you can fill the form for designating a legal guardian for your child after your death with some required information and documents. You can post the documents and form or hand them over to a local district court.
But what rights can parents deliver to a legal guardian? If a newborn child has a legal guardian who does not relate to him/her as a parent, then who will be responsible to care for the minor?
Does a legal guardian have greater rights than a biological parent?
When a third party is appointed to care for the minor by the biological parents of the child or the family court, the guardian would be responsible for everything of a minor in place of a parent. These responsibilities often retain the authority to decide the educational and medical matters and every other aspect that is crucial in the upbringing of a child. The guardian will perform these legal obligations until the duration of the court orders remains.
The legal rights of a child’s biological parents emanate from the legal intrinsic authority that is awarded to the child’s parents. These parental rights give the legal and physical custody of a minor. This particularly means that the biological parents have the power to make decisions against the child’s upbringing and well-being. But, oftentimes, parental rights do not remain the same and are not permanent in every situation. A family court judge can suspend or terminate them after identifying a variety of reasons. Usually, parental rights are affected when there’s a disturbing or threatening environment that disrupts the mental or physical health of the child.
Legal Guardian VS Biological parent
There are certain circumstances where the rights of the legal guardian can overrule the right of biological parents. This generally happens when the child lives with the legal guardian or has custody of the child. Here, biological parental rights are not terminated completely; they are just held for the time until the family court judge finds it suitable to reinstate them. Until then, the guardian will be charged for making decisions for the ward.
Termination of a guardianship
Likewise parental rights, guardianship rights can also be terminated through a couple of abnormalities and also because they were imposed for a specific purpose. If a legal guardian was appointed by the parents for temporary or voluntary guardianship, they can end it whenever they deem necessary. On the other hand, temporary guardianships that are imposed by the family court judge will remain in effect until the proposed duration. Permanent guardianship does not have any duration or period, they will remain under effect until the parent intervenes or the court wants to suspend it.
Can you reverse or modify guardianship?
When a guardianship decree is granted, a guardianship court agreement/order is issued by the family court. The document is listed with the names of the parties, the authorized scope of the guardian(s), the termination rules, and the guardianship expiration dates. Just like the alimony and the child support scenarios, a change in situation can bring a change in guardianship authority and rights of a guardian. To reverse or to modify the guardianship, the interested party can file a petition in the family court to have a stay or termination order.
What happens if parents die without appointing a guardian?
If parents of a child die without appointing a guardian for their child (ren), then the court will take the responsibility to appoint a legal guardian of the child until the child gets up to the age of 18. The court will follow the above-mentioned criteria to find the appropriate legal guardian from a family member for instance. If the court does not find any family member compatible with the child’s custody, it can also provide guardianship to a certified agency such as Child and Youth Protection. In cases, where a parent of a child is ill or withdraws the rights and nobody is there to bear parental responsibility either permanently or temporarily, then the court can also appoint a guardian.
The child protection board suggests appointing an agency for the child in case the parents of a child are unable to cope up with the necessary interventions in the upbringing of a child.
How can a family attorney help you in appointing a guardian?
You want to provide your child with absolute care even after your death and want to do whatever it demands. Applying for guardianship is one of the necessary future planning that you must think about first. Guardianship laws can be intricate and confusing to understand when you first try to apply for a legal guardian.
When you make up your mind to have a legal guardian for your child, contacting an experienced family lawyer should be the first mindful step that you need to take to map out your future landscape. Hire a local family attorney to begin your process today.
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