Discover why you need to name a legal guardian for your children, the rights and responsibilities of them, and the required steps that you need to take to designate an individual as the legal guardian of your children.
A legal guardian is an individual that assumes the role of the parent for a child, providing necessities like clothes, food, and shelter. The guardian also makes daily and significant decisions on behalf of the child.
Significant decisions comprise of where and how to acquire medical care, what kind of education the child will get, and how to bring up the child, including general care, vacations, and religious raising.
How Do You Acquire a Legal Guardian for a Child?
Naming a legal guardian happens in one of the following ways:
- Designating the child’s guardian in your will
- Filing guardianship proceedings through court
- In many states, parents may sign a document in front of witnesses naming a guardian
After you designate a guardian for your child through your will, the guardian will raise your child following your passing.
In a lot of states, your child is required to also agree with your selection of a guardian when the child is more than fourteen years old. In many states, guardians are known as conservators.
Why Does the Courts Designate Legal Guardians of Minors?
A court can appoint a legal guardian throughout your lifetime if, for some reason, you can’t bring up your child. This may occur if:
- You can’t bring up the child now, and another individual should raise the child for you, if you agree or not
- A court invalidated your parental rights, and the father is not available
- You will be gone for a while or are in the marines
- You are gravely ill, incapacitated, or unfit to bring up the child because of addiction, child desolation or abuse, or domestic abuse in the home
- You are imprisoned, and there is not another parent to bring up the child
Types of Legal Guardians
Occasionally a child is going to have 2 guardians, called guardians of the person, and guardians of the estate.
Guardians of the Person
Guardians of the person are guardians that are mainly responsible for bringing up the child.
Guardians of the Estate
Guardians of the estate are trusted individuals that takes care of the child’s finances, particularly when the guardian of the person isn’t good handling money or when the child has a substantial estate.
The Guardians Role
When the guardian of the person can handle the child’s money, the child might only need one guardian.
The model guardian is reliable and is an individual that has the character and capability to bring up your child. In a lot of states, guardians are citizens of the US and are at least eighteen years of age, but in many states that age is twenty-one.
The court can authorize an adult sibling as guardian. Typically, guardians cannot have been convicted or have committed child abuse, negligence, physical assault, abandonment, or other severe crime or family wrongdoing. It’s vital that the guardian’s lifestyle is one that benefits the child.
Rights and Responsibilities of Legal Guardians
Guardians are contracted with a “fiduciary duty” to the child, meaning that guardians owe a duty of trust and are required to behave in a manner that furthers the best interests of the child. Equally guardians of the person and of the estate are trusted individuals that will do the right thing for the child.
They cannot pillage the child’s assets and/or money. They typically need court consent if they wish to move out of their location. A guardian of the person is held to high standards of bringing up the child as if the guardian was the parent of the child.
Legal guardians may invest for the child, and they are able to hire suitable individuals to safeguard the child’s assets. They are able make decisions for the child, sign up the child in activities like sports and music, and travel with them. Subject on what the court order declares, the guardian might travel out of state or country with the child.
Filing for Legal Guardianship
When a will designates a legal guardian, the probate court names the guardian in accordance to the will. When a child requires a legal guardian throughout a child’s parent’s lifetime, a parent or any other interested individual needs to file a request to have the court appoint a guardian. If you aren’t a parent, you can file a request asking that the court designate you as the child’s guardian.
When you are filing the guardianship documents on your own, use your state’s family, probate, and/or surrogate court’s websites for the appropriate guardianship documents. When filing on your own use the following steps:
- Fill out the petition. When you are not the parent, attempt to get written permission from the parents of the child for guardianship. Fill out any documents the court requires.
- File the petition with the appropriate court. Be sure to make copies of the petition and associated documents and file the original one. Be sure to pay any filing fees.
- Serve involved individuals with the documents. When you are the petitioner, you are not able to serve yourself, but will require a sheriff or process server. Involved individuals comprise of each of the parents, if there are foster parents, and/or social services, the individuals with whom the child resides, and the child when they’re more than fourteen years old.
- Get ready for court. Collect evidence, like the child’s birth certificate and any written consent.
- Grant home inspections. In addition, anticipate the child and the guardian to see doctors, attorneys, and/or therapists. The guardian might have to agree to a background check.
- Attend the hearing with the child. The court will give you notice of the hearing date, but if you have not heard from them after service of documents, get in contact with the court to find out when and if you have a date.
- Await for the court’s decision. Occasionally the court will choose from the bench, and other times will give a written ruling and order, or documents of guardianship, following the hearing.
Court appointed guardianship isn’t an easy process, hiring a family attorney is wise, particularly when an individual is challenging it or filing their own request.
DeLoe, R. (2020, October 27). Appointing a Legal Guardian. Retrieved January 29, 2021, from https://www.legalzoom.com/articles/appointing-a-legal-guardian
Arizona Family Law
Naming guardians in your will can be part of your estate plan. You may think you’re too young or don’t have enough money to justify the expense, but if you have children, you have priceless assets. There are many considerations when naming guardians for your kids. However, the process doesn’t have to be expensive or complicated.
There’s nothing better than the peace of mind you will have knowing you’ve protected your family at a time when they need it most. Let us help. Schedule a consultation or contact Ogborne Law, PLC of Arizona today.