Guardianship for Minor Children

Guardianship Administration for Minor Children

Under certain circumstances, it may be necessary for the Court to appoint a Guardian of the Person, Guardian of the Estate, or both for a minor child (under age 18). By operation of law, guardianship of a minor terminates when the minor turns 18 years old.

The “Guardian of the Person” of a minor typically has physical custody of the minor, makes decisions concerning the minor’s physical and personal care, including living arrangements and health care related matters. A parent is already a minor child’s legal guardian by operation of law and need not obtain guardianship of his or her own minor child. A minor will need a Guardian of the Person if the minor has no living parents, the parents cannot be found, or when neither parent is able and willing to care for the minor.

The “Guardian of the Estate” of a minor makes decisions concerning the minor’s financial affairs and is authorized to handle the minor’s money, property, bills, and other financial affairs. A minor will need a Guardian of the Estate if the minor is entitled to funds or property with a value of at least $5,000 (e.g., as beneficiary of insurance, from an inheritance, or from settlement of a personal injury case). If the only assets the minor is entitled to are Social Security benefits, then a Guardian of the Estate is not necessary.

The same person can be named as both the Guardian of the Person and the Guardian of the Estate of a minor.

The Guardian must be a U.S. resident; at least 18 years old; a resident of the United States; not of unsound mind; not an adjudged disabled person; not been convicted of a felony involving harm or threat of a minor; and willing and able to act as Guardian. Often a family member or friend will be appointed Guardian. However, if the value of the minor’s estate is significant (e.g., such as an inheritance or personal injury settlement), the Court will typically appoint a financial institution as Guardian of the Estate for the minor child.

A non-parent has standing to file a petition for guardianship of a minor if each parent has:

  • Voluntarily relinquished physical custody of the child;
  • Failed to appear for a hearing after proper notice and is unwilling and unable to make and carry out day to day child care decisions; or
  • Consented to the guardianship in a written, dated, and notarized document.

After the Petition for Appointment of Guardian of a Minor is filed, the Petitioner will then send notice of the date, time, and place of the hearing to the parents and nearest relatives of the minor (and to any person who already has legal custody or guardianship of the minor). If a parent is deceased, the Petitioner must file the parent’s death certificate with the Petition. If a parent cannot be located, the Petitioner will need to show the last known address of the missing parent and send notice to that parent at that address. If a minor has reached 14 years of age, he or she must consent in writing to the guardianship or be given written notice of the hearing on the Petition. At the hearing, the Judge will decide whether to appoint a Guardian of the Person, Guardian of the Estate, or both for the minor child.

The Judge will sometimes appoint a Guardian ad Litem (GAL) to investigate the facts of the case and determine what would be in the minor child’s best interests. The GAL might interview the minor, the minor’s family and friends, the minor’s physician, and other interested parties, and then will report to the Judge his or her findings and opinions regarding whether a guardianship is needed, who should be appointed Guardian, where the minor should reside, and what types of services the minor may require.

Any time the Guardian wants to make a disbursement that is outside of the annual budget set forth for the minor’s Estate (e.g., reimbursements for expenses paid on the child’s behalf, attorney’s fees, Guardian’s fees), wishes to make a major disposition of the minor’s Estate assets (e.g., sale or purchase of real estate), or desires to make major changes affecting the minor’s care (e.g., moving the minor to a different school), the Guardian will need to petition the Court for prior approval. Any such disbursement must be for the minor’s comfort, support and education.

The Guardian of the Estate must file an annual accounting showing the receipts to and disbursements made from the minor’s Estate. Further, the Guardian of the Person must file an Annual Report on Ward reporting on the minor’s status and well-being (i.e., mental, physician, and social condition), current living arrangements, and any medical, educational and other services the minor has received.

Although the guardianship of a minor terminates automatically when the minor turns 18, the Guardian of the Estate must file a final accounting before being discharged by the Court.

FMS Law Group has represented clients in all the various roles in the Minor’s Guardianship administration process, on behalf of:

  • the nominated Guardian;
  • a cross-petitioner who desires to be appointed Guardian;
  • the appointed Guardian of the Estate; and
  • the appointed Guardian of the Person.

In addition, the Court has appointed attorneys at FMS Law Group to act as Guardian ad Litem (GAL) to investigate and determine what is in the best interests of the minor child.