A tragic death or the sad circumstances of a parent who is incapable of caring for a child because of drug or alcohol addiction, or who has been abusing the child, often requires appointment of a guardian to care for the child. An individual who is caring for a child may petition the court for guardianship under certain circumstances.
What is a Guardian?
A guardian is an individual who steps into the shoes of the parent and who is authorized to make most of the major decisions regarding the child’s health, welfare, safety, care, and education. If the child’s parents are still available, then the guardian may monitor their visits with the child or even deny visitation, though their visitation rights may have to determined by the court. Essentially, the guardian becomes the parent or caregiver for the child for a period of time.
A guardian must be at least 18-years of age and demonstrate competency to care for the child. A criminal background check is conducted and a review of whether the candidate has had previous involvement with the Department of Children and Families.
If the child is at least 14 years of age, then the child may nominate a guardian and sign the guardianship petition before a notary. Any candidate must still be court-approved and the appointment be in the child’s best interests.
When is a Guardian Appointed?
There are situations where a child’s parents have died tragically, abandoned the child, or are deemed unfit to support and care for the child. Unfitness may be the result of drug or alcohol addiction where the parent neglects the child who is found to suffer from malnutrition, chronic illness, or other conditions where no medical care is sought. In some cases, the parent may be violent or is sexually abusing the child. Occasionally, a parent may be too ill or has been injured and no family members are available to care for the child. In these situations, the child is generally placed in foster care.
Courts do not readily appoint guardians since no parent is perfect. Merely because the child is living under impoverished circumstances is not a determining factor but one of several that the court will consider since a parent’s rights can be curtailed or even terminated in some cases.
If you are caring for a child for more than a few months and need to have decision-making authority for the child, then you should file a petition. Schools, hospitals, and other institutions will usually want a court-approved guardian if the parent is unavailable.
How is the Guardian Appointed?
A parent can petition the court for a guardianship if they can show that they are incapable of caring for the child. Parents can also ask for periodic assistance in caring for a child by signing a Caregiver Authorization. In this cases, parents retain all their rights and obligations towards the child and can revoke the authorization at any time. This is different from a court-ordered guardianship.
A petition for guardianship is filed in the Probate Court in the county where the child is residing. No filing fee is required. The person who is selected to be the guardian is required to have the petition served personally by a disinterested party, or process server, or by the county constable, on all interested parties, including:
- The parents or child’s nearest relatives if over 18
- Child’s spouse, if applicable
- The child, if at least 14 years of age
- The child’s conservator or other guardian (there can be co-guardians)
- Anyone with whom the child has been residing for the past 60-days, excluding foster parents
If the guardianship is contested by a parent or any interested party, then the court will generally appoint an attorney to represent the child’s interests if someone makes that request or the court feels that the child’s interests are not being properly represented. A guardian ad litem may also be appointed to investigate the child’s circumstances as well as the guardian candidate and report to the court.
Powers of a Guardian
Guardians are required to file a bond if appointed to protect the child in case the guardian improperly manages the child’s assets. The fee for filing for a bond with sureties is $50, though a bond with sureties is not always required. Certified Letters of Appointment are $20, though this cost can be waived on request.
The guardian is authorized to spend funds for the child’s food, medical care, and education and may receive up to $5000 per year to use for the child. The guardian may also manage Social Security Disability or income for the child. In cases where there are substantial assets to manage, the court may appoint a conservator to manage the funds, which may include expenses for the child’s education and support. A conservator is usually appointed where the child is to inherit significant assets from either the deceased parent’s estate or anyone else’s.
Guardians are monitored by the court and they must file an “Annual Report of Guardian of a Minor.” This form is due on the anniversary of the date when the guardian was appointed. The guardian reports on the current status or situation of the minor and what changes, if any, have occurred since the appointment or last report.
The guardianship ends when the child:
- Reaches age 18
- Is adopted
- The guardian is deemed incompetent
- The court determines on its own or by request that a guardianship is no longer necessary
Consult Boston Guardianship Lawyer Heather M. Ward
There are times when a Boston guardianship lawyer is needed to advise you on all issues concerning guardianship of a minor, whether you are a parent or person seeking guardianship. Heather M. Ward is family law lawyer who has been representing the interests of parents, children, and couples regarding all types of family law matters, including guardianship.
Call her office today at (617) 903-8955 to discuss guardianship issues or any other family law matter including divorce, separation, child custody and support, parental rights, property distribution, alimony, and others.