Appointing a Legal Guardian

How do you get a legal guardian for a child?

Appointing a legal guardian occurs in one of the following ways:

• Naming your child's guardian in your will
• Filing a guardianship proceeding in court
• In some states, parents can sign a form in front of witnesses, appointing a guardian

When you name a guardian for your child in your will, the guardian will raise your child after you've passed.

The court doesn't always have to accept the guardian you've appointed. Consequently, you may want to name a backup guardian in the event the court disapproves of the named guardian.

In many states, your child must also agree with your choice of a guardian if the child is more than 14 years old. In some states, guardians are called conservators.

Why do courts appoint legal guardians of a minor?

A court may appoint a legal guardian during your lifetime if, for some reason, you can't raise your child. This could happen if:

• You can't raise the child now, and someone else should raise the child for you, whether you agree to this or not
• A court terminated your parental rights, and the father is unavailable
• You'll be away for a while or are in the army
• You're seriously ill, incapacitated, or unfit to raise the child due to addiction, child neglect or abuse, or domestic violence in the household
• You're incarcerated, and there's no other parent to raise the child

Types of legal guardians

Sometimes a child will have two guardians, known as a guardian of the person, and a guardian of the estate.

• A guardian of the person is the guardian who is primarily responsible for raising the child.
• A guardian of the estate is a trusted person who takes care of the child's finances, especially if the guardian of the person isn't good with finances or if the child has a large estate.

If the guardian of the person can take care of the child's finances, the child may need only one guardian.

The ideal guardian is trustworthy and is someone who has the temperament and ability to raise your child. In most states, guardians are U.S. citizens and are at least 18 years old, but in some states that age is 21.

The court may approve an adult sibling as a guardian. Usually guardians can't have convictions or have committed child abuse, neglect, assault, abandonment, or other serious crime or family offense. It's important that a guardian's lifestyle is one that works well for the child.

Rights and responsibilities of legal guardians

Guardians owe a "fiduciary duty" to the child, which means that guardians owe a duty of trust and must act in a manner that furthers the child's best interests. Both guardians of the person and of the estate are trusted people who will do the right thing for the child.

They cannot raid the child's money or assets. They usually need court permission if they want to move out of their area. A guardian of the person is held to a high standard of raising the child as if the guardian were the child's parent.

Legal guardians can invest for the child, and they can hire appropriate people to protect the child's assets. They can make decisions for the child, enroll the child in activities such as sports and music, and travel with the child. Depending on what the court order states, the guardian may travel out of state or out of the country with the child.

How to file for legal guardianship

If a will names a legal guardian, the probate court appoints the guardian pursuant to the will. If a child needs a legal guardian during a parent's lifetime, the parent or any other interested person must file a petition to have the court appoint a guardian. If you're not the parent, you can file a petition requesting that the court appoint you as the child's guardian.

If you're filing the guardianship papers yourself, check with your state's family, probate, or surrogate court's website for the appropriate guardianship papers. Take the following steps:

1. Fill out the petition. If you're not the parent, try to get written consent from the parents for guardianship. Fill out whatever papers the court requires.
2. File the petition with the proper court. Make sure you make copies of the petition and accompanying papers and file the original. Pay the filing fee.
3. Serve interested people with the papers. If you're the petitioner, you cannot personally serve the papers but will need a sheriff or process server. Interested people include both parents, any foster parents, and social services, the person with whom the child lives, and the child if they're more than 14 years old.
4. Prepare for court. Gather evidence, such as the child's birth certificate and any written permission.
5. Allow home inspections. Also, expect the child and the guardian to meet with doctors, attorneys, and therapists. The guardian may have to agree to background checks.
6. Appear at the hearing with the child. The court will notify you of the hearing date, but if you haven't heard from the court after service of the papers, contact the court to find out if you have a date.
7. Wait for the court decision. Sometimes the court will decide from the bench, and other times it will render a written decision and order, or letters of guardianship, after the hearing.

Court-appointed guardianship is not a simple process, so hiring a family attorney is a good idea, especially if someone is contesting it or filing their own guardianship petition.

Legal guardianship FAQs

What is a legal guardian, and what do they actually do?

A legal guardian is someone who steps in as a child’s parent when their real parents can't take care of them anymore. The legal guardian becomes responsible for providing everything a child needs to live and grow up safely, including making sure they have food, clothes, and a place to live. They also make important decisions about the child's life, like what medical care they get, what school they attend, and even things like their religious upbringing.

How can parents choose who will be their child's guardian?

The first and most common way is to name a guardian in your will (the legal document that says what happens to your property when you die). When you do this, you're telling the court who you want to raise your child if something happens to you. It's smart to also pick a backup guardian in case your first choice can't serve. The second way is through a court process where someone asks a judge to appoint them as guardian. This usually happens when parents don't write a will or when there's an emergency situation.

When would a court appoint a guardian while the parents are still alive?

Courts may appoint guardians for children if the parents can't properly take care of them, which can happen in several ways. Sometimes a parent becomes seriously ill or injured and can't care for their child anymore. The court might also step in if there's evidence of abuse, neglect, or domestic violence in the home. In other cases, the government (such as Child Protective Services) might have already taken away the parents' legal rights to make decisions for their child, and there's no other parent available to step in. 

Can the court reject the guardian that parents chose in their will?

A judge might reject a chosen guardian for several reasons. Maybe the person has a criminal record, doesn't have a stable home or income, lives too far away, or has health problems that would make caring for a child difficult. The court might also say no if the person simply doesn't want the responsibility anymore or if the child strongly objects to that guardian, provided they’re mature enough to articulate and understand their decision. 

Do you need a lawyer to get guardianship, and how complicated is the process?

While you're not legally required to have a lawyer for guardianship cases, the process is complicated enough that most people should seriously consider getting legal help. The guardianship process involves a lot of legal paperwork, strict deadlines, and specific rules about how things must be done. A family law attorney who understands guardianship cases can help you avoid costly mistakes and make sure everything is done properly.