How Guardianships Work FAQ

Learn more about the guardianship process.

Questions

What is the difference between a guardianship and an adoption?

Legal guardianships are temporary legal relationships where an adult who isn’t the child’s parent provides care for a child. A parent who consents to a guardianship hasn’t necessarily given up all parental rights. The child’s legal parents typically retain the obligation to financially support their child and can normally terminate the guardianship at any time.

Unlike guardianships, adoptions are final and permanently terminate a parent’s rights to and obligations for a child. Once an adoption has occurred, the child’s biological parents typically have no right to visitation with a child and no duty to provide the child with financial support. Not surprisingly, the adoption process is much more complicated than the process for establishing a guardianship and much harder to reverse.

What does a guardian do?

Generally, guardians fulfill the role of a parent for a child who is not their own. However, in situations where a child has significant medical needs or the child has financial assets, the child’s parent may obtain a guardianship over the child or the child’s estate.

In most cases, a guardian’s responsibilities typically include providing for the child’s care and day-to-day needs, such as food, clothing, shelter, education, and medical care. Guardians over a child’s estate manage a child’s finances and are responsible for safeguarding funds until a child reaches age 18.

When does a guardianship end?

Guardianships can terminate according to a guardianship agreement or order or automatically when certain events occur. For example, a guardianship order may set a one-year time frame over a guardianship. In that case, the guardianship would terminate automatically at the year mark.

More often, guardianships are left open-ended and last until one of the following events occurs:

  • the guardian resigns
  • the child reaches legal age of majority (usually 18)
  • the child or the guardian dies
  • the child’s assets have been depleted
  • a judge determines that the guardianship is no longer necessary, or
  • a judge determines that the guardianship no longer serves the child’s best interests.

For example, if a guardian requests to be released from the guardianship, a judge will appoint a new guardian. In certain cases where a guardian has misused the child’s assets or allowed or committed abuse, a judge will remove a guardian for cause on the presumption that the guardianship no longer serves the child’s best interests.

What is a guardian ad litem?

Guardian ad litems (GALs) are persons appointed by a judge to determine a child’s best interests, for example in a custody case. Unlike the types of legal guardianships discussed above, guardian ad litems are not appointed to take care of a child’s day-to-day needs. Instead, guardian ad litems are a child’s voice in custody proceedings. A judge may appoint a GAL in divorce, parental termination, or adoption cases to determine the custody arrangement best suited to the child’s needs.

If a child other than my own lives with me, do I need a guardianship?

Not necessarily. If your child’s friend or a relative is living with you for a few days or a few weeks, you probably don’t need to obtain a legal guardianship. However, problems can arise if a child is staying with you on a long-term basis or the child has significant intellectual disabilities or medical needs.

With long-term stays, you are more likely to encounter situations where you need to obtain medical care for the child, such as a dental cleaning or medical exam. It may be difficult to obtaining necessary medical care or enroll the child in school if you aren’t the child’s guardian. It’s important to evaluate the child’s needs and your role in the child's life before allowing someone else’s child to live in your home.

Is is true that parents may need a guardianship of their own child?

In rare cases, parents may need to set up a guardianship over their children’s estates. Minor children typically don’t contribute to a family’s finances or have significant funds of their own. When a child receives a large financial gift, a parent may need to set up a guardianship of the child’s estate.

These types of guardianships allow a parent to manage a child’s finances and safeguard the money until the child reaches age 18. In most instances, the guardianship will terminate automatically once the child is of legal age.

Certain state legislatures have recognized the inconvenience associated with setting up guardianships over a child’s financial estate. In those states, a child’s parents won’t need to obtain a guardianship of the estate unless the gift received by the child is over $10,000.

If you have additional questions about guardianships after reading this article, contact a local family law attorney for advice.

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