Note: In California, guardianship refers to a legal arrangement an adult seeks to oversee the life or finances of a minor child, whereas conservatorship refers to a legal arrangement an adult seeks to oversee the life or finances of an adult who is incapacitated. Learn how to obtain a conservatorship.
Separating minor children from their biological parents is never the preferred choice; however, if the parents are unfit to raise a child or are physically unable to be there for them, moving the child into the home of a responsible adult through a guardianship is often the only way to get them the care and attention they need.
Suppose a child’s parents have a drug habit that is causing them to not only neglect their child’s essential needs but also their duty to provide the child with a safe home environment.
Or maybe a parent’s job requires them to be abroad for an indefinite period of time, but the parent does not wish to uproot the child during their school year.
Or maybe a child’s parents died in a car accident, and a family member wishes to care for the child until they turn 18.
Or perhaps a child received a sizable inheritance and needs a financially savvy adult to manage these funds until they become an adult and can access the funds themselves.
In all of these examples, it would be appropriate for an adult to seek guardianship over the child, as the child’s parents — either temporarily or permanently — do not have the capacity to adequately care for the child or the child’s assets themselves.
If you are interested in learning how to become legal guardian of a child, it is important you also take the time to understand the guardianship responsibilities that will be required of you. The role of guardianship is almost identical to the role of a parent, so it should not be taken lightly.
What Is the Role of Guardianship?
The role of guardianship is to provide care and protection to a child (known as the ward) — usually when the child’s parents are incapable of providing care and protection themselves, either temporarily or permanently.
While guardianships can be obtained for a child of parents who are unfit (e.g., they have severe substance abuse or mental health issues), they can also be obtained for a child whose parents will be away for a prolonged period of time. In other words, the role of a legal guardian can vary from case to case.
Guardianships can be temporary or permanent, and guardians can either be a guardian of the person or a guardian of the estate. We will go into the meaning and responsibilities of each type of guardian later in this article.
If you continue to have questions about the role of a legal guardian or about the type of guardianship a child needs, schedule a free consultation with one of our skilled guardianship attorneys.
The Role of Temporary Guardianships
It is always the preferred choice of the courts to reunite children with their biological parents when doing so is safe and in the best interest of the child.
For example, if a child was placed under a temporary guardianship because their parent checked into a 28-day inpatient drug rehabilitation program, then the parent, once they complete the program and resolve their addiction, can try to have the guardianship terminated.
In this example, the role of guardianship was to provide interim care for the child while the parent was away seeking help for their substance abuse issues.
The Role of Permanent Guardianships
If it’s not possible to reunite children with their biological parents (e.g., the parents have died or have severe mental illness), the role of guardianship would be to provide care and protection to the child until they turn 18.
On the surface, permanent guardianship may seem similar to adoption, but the two are very different. If a child is adopted, they become a member of the family. This means they have basically the same inheritance rights as biological children. Additionally, the parental rights of biological parents would be terminated in an adoption.
Conversely, a child under a guardianship is not legally considered a member of their guardian’s family, and parents of a child under a guardianship retain some of their parental rights. For example, if the court deems it appropriate, a parent can visit their child while they are under the care of their guardian.
If you are considering becoming guardian to a minor child, but are unsure of whether a temporary guardianship or permanent guardianship would be more appropriate, our attorneys can help you decide.
What Are the Rights and Responsibilities of a Legal Guardian?
What are the duties of a legal guardian? How do the duties of a guardian of the person and guardian of the estate differ?
When an adult who is not a child’s parent volunteers to become that child’s guardian, it is admirable; however, no matter how much affection you have for a child, you should not take on the role of a legal guardian without first considering the many guardianship responsibilities you would be required to fulfill.
For instance, do you have other minor children? If so, do you have the time, energy and resources to add another minor to your household? Are you capable of managing the child’s health care and education? Have you spoken to the other members of your family about the guardianship? Are they in agreement with the arrangement? Are the child’s parents and relatives in agreement?
It is important to consider these questions before petitioning for a guardianship. If, for example, your family is not on board with the guardianship, the ward — who might have been placed under a guardianship because of a toxic home environment — may be walking into another toxic home environment, which would defeat the purpose of the guardianship.
Similarly, if the parents of a child are opposed to a guardianship, you may have an uphill legal battle — which doesn’t mean you should not petition for a guardianship but that you should seek the help of a guardianship lawyer to ensure your reasons for guardianship are presented in the best light possible.
Legal guardians are a type of fiduciary, which means they are required to act in the best interests of the ward at all times. If they don’t, they could be held liable for the damage their fiduciary misconduct or neglect caused. For instance, if the guardian has been using the ward’s child support money to make purchases for themselves, they may not only have to return the money they stole but pay damages as well. They may also be removed from the role of legal guardian on account of having breached their duties.
So, what are the responsibilities of a legal guardian? That really depends on the type of guardian you are. You can either be a guardian of the person or a guardian of the estate. Keep reading to learn what these terms mean and the guardianship responsibilities of each.
What Are the Duties of a Guardian of the Person?
What are the responsibilities of a guardian of the person? A guardian of the person’s guardianship responsibilities entail managing the daily needs of the ward, including food, shelter, clothing, education and health care. Most children only require a guardian of the person since they do not have enough assets to warrant having a guardian of the estate.
Some of the specific duties of a guardian of the person include:
- Deciding where the ward will reside: If you have been named a child’s guardian of the person, you have the authority to move the child into your home; however, if you plan to move with the child out of California, you will need to seek the court’s permission first. You, likewise, must immediately notify the court if you move residences within the state.
- Managing the ward’s health care: As a child’s guardian of the person, it is your responsibility to tend to the child’s medical and dental needs. You also have the authority to consent to most medical or dental procedures that need to be performed on the child. If the ward is 14 years of age or older, the guardian will need to obtain the ward’s consent or a court order before authorizing any surgical procedures that are not needed on an emergency basis.
- Obtaining mental health treatment for the ward: As a child’s guardian, it is your responsibility to seek a mental health professional for the child if the child appears to have mental health issues. You are not entitled, however, to place the child in a mental health institution unless the child goes voluntarily or the court issues an order.
- Managing the ward’s education: As a guardian of the person, you have the authority to decide which school the child will attend and are responsible for overseeing the child’s education. If the child needs help with their education (e.g., they need a math tutor), it is your responsibility to find it for them.
- Submitting periodic status reports to the court: Legal guardians must submit status reports to the court about how the child is doing under their care. The court may also request guardians to appear in court or send social workers or court investigators to meet with them, and they must comply.
While the duties mentioned above pertain to most guardianships of the person, the court might have placed different conditions or duties on your guardianship, so it is important you are clear about your legal guardian rights and responsibilities before bringing the ward under your care. A guardianship attorney can go over the terms of your guardianship with you.
If the guardian of the estate and guardian of the person are two different adults, there will need to be communication between the parties, as the guardian of the person will need to request funds from the guardian of the estate to pay the child’s medical, dental and educational expenses, among other things.
To avoid liabilities, many guardians seek the help of a guardianship attorney to navigate their role. It can be intimidating to make major decisions — such as consenting to a medical procedure or deciding which school the child will attend — for someone else’s child, which is why it is never a bad idea to seek help if you are unsure about your guardianship responsibilities or a decision you have to make for the ward.
What Are the Duties of a Guardian of the Estate?
What are the responsibilities of a guardian of the estate? As previously mentioned, because children generally don’t have assets, most of them will not require a guardian of the estate.
Some children, however, have received a sizable inheritance from a deceased parent or grandparent, or have themselves earned substantial income from a skill or business (e.g., teen pop star or entrepreneur), and they do need a guardian of the estate to manage their money for them until they turn 18 and have the authority to access it themselves.
For example, if a parent dies, leaving half of their assets to their minor child, the surviving spouse could petition the court to be appointed the child’s guardian of the estate. This way, the parent could manage the child’s money, try to safely grow it, and use it to cover the child’s expenses, such as education and health care. Once the child turns 18, the funds will be transferred into the name of the child, unless the estate plan has different conditions.
Keep in mind that a child with substantial assets will require a guardian of the estate even if they have a surviving parent. Of course, the parent can petition the court to be their child’s guardian of the estate, but they cannot bypass the formal guardianship process. Because a guardianship is supervised by the court, this can help ensure the guardian doesn’t squander or misuse the ward’s assets.
Some of the specific duties of a guardian of the estate include:
- Preserve and protect the ward’s assets: It is the responsibility of a guardian of the estate to safeguard the ward’s assets until the ward turns 18. They might do this by placing the ward’s money in a high-yield savings account or in a trust.
- Creating an inventory of the ward’s assets: At the start of the guardianship, it is the guardian of the estate’s responsibility to marshal the ward’s assets and create an inventory of them.
- Submitting periodic estate accountings to the court: Guardians of the estate are responsible for filing periodic estate accountings with the court throughout the course of administration. The report should include expenses, losses, gains, investments and any other transactions that affected the value of the estate.
- Managing the ward’s assets conservatively: As a guardian of the estate, you are generally entitled to make investments using the ward’s assets as long as these investments are not risky and are expected to provide a benefit to the ward. Guardians of the estate cannot ever use or borrow the ward’s money for personal gain.
- Paying the ward’s expenses and debts: If a child has a guardian of the estate, it is they who are responsible for paying the child’s expenses (e.g., school tuition), debts and other costs arising over the course of the guardianship.
Guardians of the estate must remember the present and future financial wellbeing of the ward is in their hands. That being the case, they should make decisions carefully and regularly consult with a guardianship attorney. They can even seek the help of a guardianship attorney to prepare the inventory of assets and accountings.
It is possible these services can be financed from the ward’s assets, although permission from the court would be required.
Still have questions about the legal guardian job description? Keystone’s guardianship attorneys can help.
The role of guardianship is to provide a safe, loving and nurturing home environment to a child who has either lost their parents, or whose parents are away or unfit to raise a child.
As a child’s legal guardian, there are a lot of guardianship responsibilities you must keep track of, as your job is essentially the same as a parent’s. Likewise, it is important to make yourself aware of the specific duties of a guardian of the person and the duties of a guardian of the estate (if the court has decided the child requires one).
Keystone’s guardianship attorneys can not only help you obtain a guardianship but they can also help you navigate your guardianship responsibilities once the guardianship is in place. Call us today to schedule your free consultation.
