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 April 01, 2020

How to Obtain Legal Guardianship

Happy guardian of young girl

Family courts assign legal guardianship for minor children under the provisions set by state laws.

There are several situations that may prompt parents to appoint a legal guardian for their children. In some cases, a parent may suffer from an illness or disability. In other scenarios, one or both parents may face incarceration. It is also an important consideration when completing a Will or other estate planning. Whatever the reason parents aren’t able to care for their kids, parents often fail to consider guardianship when thinking of their children’s future.

Sometimes, simply knowing and understanding more about legal guardianship goes a long way toward easing parents’ reluctance to make this decision to safeguard their children’s future, no matter what happens.

What is guardianship?

An appointed legal guardian (sometimes referred to as “conservator”) gains control over the care, property, and finances of the minor child, called a “ward.” In general, the guardian directs the minor child’s medical treatment, well-being, and care. For minors, the guardian also ensures a good education.

Guardians typically pay for their ward’s expenses using the ward’s income or trust money, and guardians may also have the right to be paid for their guardianship responsibility.

Given all this authority, a legal guardian is duty-bound to act in the best interests of the minor child.

What to consider when choosing a legal guardian

Even if you’ve decided on a legal guardian, you may still find yourself at a loss for how to choose the person who will care for your minor child.

Making a list of possible candidates may help you narrow down your choices. Some parents consider friends and extended family, as well as an immediate family when naming a guardian. You never know who will rise to the top of the list of candidates when you consider additional factors.

Factors to consider when choosing a guardian for your child

When deciding, you should consider if the guardian:

  • Is an adult: Most states define this as 18 years of age.
  • Knows your child: This will make the transition much easier for your child. Many parents look to a grandparent, uncle, aunt or stepparent.
  • Shares your personal values for raising children:  Consider whether they share your religious background or spiritual values, as well as the emphasis they place on education and building strong morals.
  • Is financially stable: Putting  your child in a household that cannot afford them, could create a burden and emotional strain for everyone involved, regardless of good intentions.
  • Is physically and emotionally healthy: You do not want to put your child in a situation where they are cared for by a person who suffers from poor physical or mental health.
  • Will present a daily life that you can see your child enjoying: What this looks like varies depending on your child’s personality and their current lifestyle. The best test is to ask yourself if they seem happy in the day-to-day life you imagine with this guardian.
  • Will the person be raising your child: Consider whether the person you name as legal guardian will actually be the individual who raises your child. If they are married, you must consider whether their spouse will fulfill some of the parental duties.
  • Has a family structure that you envision working well for your child: Perhaps the guardian you are considering has other kids; if so, consider how your child will fare growing up with these other children. 
  • Lives in a geographically suitable location:  You may want to ensure that your child lives relatively close to their family and friends, keeping their support system strong and their social lives stable.
  • Loves your child: At the end of the day, how this candidate feels about your child and conveys that love is important.  They should make your child feel comfortable and safe.

Considering your candidates using the above questions may give you clarity in choosing your child’s legal guardian. You should also discuss guardianship with the people you are considering naming to understand their willingness to take on the role, and any expectations.

Naming your guardian in your Will

It is important for the parent of a minor child to address in their Last Will and Testament who they wish to serve as guardian.  They may also name an alternative person who will assume legal guardianship if their first choice is no longer able or willing to take on the role.

Your Last Will and Testament is the document that courts will use to determine all your final wishes, including legal guardianship. Still, your choice for a legal guardian must meet with court approval. The judge will weigh whether the guardian you named can and will provide a caring and stable environment for your child. The judge will also consider how well your child and the named guardian connect and will even take into account your child’s preferences, if possible.

Standby guardianships

In some cases, parents may feel the need to transfer legal custody of their minor child to another individual, despite the parents still being alive. Standby guardianship provides for this circumstance, enabling parents to choose a person to care for their children while still retaining some authority over them.

The rules for establishing standby guardians appear in the statutes of 29 states=: Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Utah, Vermont, Virginia, West Virginia and Wisconsin.

What happens if there is no legal guardian?

Few decisions you can make have the potential impact of choosing a legal guardian, and yet, many people delay in making this decision. Most parents would rather not think about their children being in a situation that requires guardianship, and most individuals prefer not to envision a scenario wherein they themselves require a legal guardian to manage their lives.

In the case of a minor with two able and willing parents, if one parent dies, the remaining parent assumes physical custody and the associated role of caring for the minor. However, if both parents die, or in the case of a single parent’s death, the courts will look to the available last will and testament when making its decision about guardianship.

If you do not specify a legal guardian in your Will, and the minor’s other parent is either dead,unable, or unwilling to take care of your child, the state court will appoint a guardian for your child. The best interests of your child govern whom the judge names for this role. Typically, a close relative or older sibling receives guardianship in these situations. 

Parents should also take note that if they each name a different person as guardian, and both parents die, the minor child could be cast into the middle of an unpleasant legal dispute or court battle.

Consult a lawyer about guardianship

The task of naming or obtaining legal guardianship involves a great deal of paperwork. Some people looking to assign or obtain guardianship can reduce stress by hiring a lawyer to handle this process on their behalf.

For assistance with your legal guardianship, contact LegalShield at (800) 654-7757.

LegalShield provides access to legal services offered by a network of provider law firms to LegalShield Members through member-based participation. Neither LegalShield nor its officers, employees or sales associates directly or indirectly provide legal services, representation or advice. See a plan contract for specific state of residence for complete terms, coverage, amounts, and conditions. This is not intended to be legal advice. Please contact an attorney for legal advice or assistance. If you are a LegalShield Member, you should contact your Provider Law Firm.


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