Although we use the term loosely, what is a legal guardianship? When may a guardianship be necessary, who can be a guardian, and what are the responsibilities and consequences of a guardianship? How can a guardianship be terminated? And what is the difference between a conservatorship and guardianship?
A conservatorship is a situation in which the court appoints an individual or organization to care for an adult who is mentally or physically handicapped and is unable to manage his or her affairs
A guardianship is a legal process whereby an adult is given the legal authority and duty to care for and protect a child under 18 years old and/or the child’s assets or both. A guardianship may be convenient or necessary when a child’s parents are away, unable or unwilling to care for the child, when the parents are deceased, or when parental custody would be detrimental.
A guardian’s fundamental responsibilities include providing food, clothing, shelter, education, medical and dental care for the child. A guardianship allows the guardian to enroll the child in school or handle school matters, provide health insurance or handle medical issues, and receive assets or benefits on the child’s behalf. The guardian possesses full legal and physical custody of the child and is responsible for all decisions relating to the child.
Under a guardianship, the child’s parents are no longer able to make decisions for the child as the parents’ rights are suspended. Either the guardian or the court may grant visitation to the parents. However, the child’s parents remain obligated to support the child financially and a guardian may obtain a court order from the parents to pay child support.
Relatives, family friends, or other interested persons may petition the court to be appointed a guardian. In appointing a guardian, the court looks to the best interests of the child. The court must give first preference to the person(s) in whose home the child has been living in a wholesome and stable environment, and then to any other person(s) deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
A guardianship generally lasts until the child turns 18 years old, is adopted, marries, or dies. It may also be terminated by the court if it is shown that the guardianship is no longer necessary or that termination is in the child’s best interests. While a guardian, parent, or child may petition the court to terminate the guardianship, there must be an appropriate adult to take over the care and custody of the child before termination.
For more information about family law related issues, please contact Nicole Whyte at (949) 221-1000.