Help! I’ve Been Named as a Guardian. What Do I Do?

Responsbilities of being named as a guardian

A guardian is an individual who cares for someone who needs special protection. Adults can nominate a guardian in his or her Will. Likewise, parents can also nominate a guardian in their Will, but a court must confirm and officially appoint the guardian. Sometimes the need for guardianship arises when the parents are still alive. For example, if the parents become very ill or are unable to care for the child for some other reason, a court can appoint a person nominated by the parents. If a guardian has not been nominated, the court will appoint a person it believes will act in the child’s best interests, often a family member or friend who is familiar with the child.

A guardianship is an important responsibility—and privilege—that should not be undertaken lightly. Below are a few of the factors you should consider if someone has asked you to assume the role of guardian.

What Are The Responsibilities of a Guardian?

The guardianship statutes of each state set forth a guardian’s duties, responsibilities, and powers. Guardians are considered fiduciaries and therefore have a general duty to act in the alleged disable person or the minor child’s best interests at all times. Specific responsibilities are similar to those of parents:

Provide food, clothing, and a place for the child to live (either with the guardian or another caretaker)
Receive and maintain money owed to the child for care or support
Apply for government benefits
Bring a lawsuit on the child’s behalf, if necessary
Maintain, account for, and preserve any funds exceeding the amount needed for the child’s support
Maintain the child’s personal property
Ensure that the child receives a proper education
Authorize medical care needed for the child’s health and well-being

Note: Guardians are not legally obligated to provide for the alleged disable person or minor child from the guardian’s own funds. In addition, a guardian must obtain court approval for certain actions—for example, changing the alleged disable person or minor child’s place of residence to another state.

How Long Does a Guardianship Last?

Certain events typically end a guardianship. A guardianship of a minor child ends when the child reaches the age of majority under state law, usually eighteen or twenty-one (18 year of age in Maryland and the District of Columbia). A guardianship of a child also terminates if the child passes away. If the guardianship is no longer needed—for example, if a parent becomes available to care for the child—the court may remove the guardian. If a guardian is no longer able to serve, the guardian must file a petition to resign, and the court will appoint a replacement guardian—optimally, an alternate or successor guardian nominated by the child’s parent. Similarly, a guardianship of an alleged disable person ends when a court of competent jurisdiction terminates the guardianship or the alleged disable person passes away.

Is a Guardianship the Same as an Adoption?

No. Unlike an adoption, in which a child’s parents permanently relinquish all parental rights and obligations, a guardianship does not terminate the legal relationship between a child and the child’s parents. Rather, a guardianship is a legal relationship that gives the guardian the rights and obligations specified by state law.

Note: A guardian of a person is different from a guardian of an estate (or guardian of property), frequently referred to as a conservator. A conservator is appointed by a court to manage and protect an alleged disable person or child’s assets if there is a substantial amount of money or property involved.

Is a Legal Guardianship Really Necessary?

Yes. If you will be caring for an alleged disabled person or a child who is not your own for an extended period of time, it is important to be the alleged disable person or the child’s legal guardian. Otherwise, you will have difficulty carrying out basic responsibilities like authorizing medical care or enrolling the child in school.

Being a guardian is an important responsibility. If a family member or friend wishes to name you as a one for a child or an alleged disable person, it is important to seriously consider whether you have the time, patience, and ability to take on this role. While it can be rewarding because it allows you to invest in the life of someone who need your care, you should be honest and decline to accept the role if you do not believe you can adequately perform the responsibilities of a guardian. If your family member or friend passes away without naming someone else as guardian in their Will, additional time and expense will be required to determine who will replace you. Moreover, the person the court appoints may not be someone the alleged disable person or the child’s parents would have wanted to care for them.

We Are Here to Help

If you have been appointed as a guardian for a child, we are available to answer any questions you may have about your responsibilities. We can also help if you need to resign as guardian of a child or an alleged disable person due to changed circumstances. Call Andre O. McDonald, a knowledgeable Howard County, Montgomery County and District of Columbia estate planning, special-needs planning, veterans pension planning and Medicaid planning attorney, at (443) 741-1088 or (301) 941-7809, to schedule a consultation. We are happy to meet with you by phone or video conference if you prefer.

DISCLAIMER: THE INFORMATION POSTED ON THIS BLOG IS INTENDED FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED TO CONVEY LEGAL OR TAX ADVICE.