What is Guardianship of a Minor?

Guest Contributor: Veronica Serrato, Esq.

You can become the legal guardian of a minor child in your care if his or her parents are unavailable or unfit to care for the child.  To do so, you will have to complete the necessary court documents, file them with the Probate and Family Court in the county where you live, and attend at least one hearing.  Veronica Serrato, Staff Attorney at Volunteer Lawyers Project, offers information about Guardianship of Minors and how to become a child’s legal guardian.

1. When does a child need a guardian?

A Court will appoint a guardian for a child when the birth parents are dead, unfit or unavailable to care for the child.  Parents can consent to a guardianship by signing an assent in front of a notary public. If a child is currently living with his or her parents, a Court will only appoint a guardian if there is evidence that the parents are unfit.  That is a difficult standard to satisfy.  The Court does not expect or require ideal parents, only adequate parents.

A guardian has almost the same powers and responsibilities of a parent regarding a child’s support, care, education, health and welfare.  The guardian can make many routine decisions about the child’s daily life, and unless the court orders otherwise, whether birth parents can visit the child.

If a child’s parent is able to care for the child but needs periodic assistance caring for the child, that parent could sign a Caregiver Authorization authorizing the caregiver to care for the child.  The parent retains all rights and obligations and can revoke the authorization at any time.  Find the instructions and form at: http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/selfhelp.html

Instructions:

http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/documents/massachusettscaregiverinstructions.pdf

Form:

http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/documents/caregiverauthorizationaffidavitform.pdf

2. Does a guardian manage a minor’s money and property?

A Guardian takes on a role similar to that of a parent and uses the child’s money for the child’s health, education and welfare. A Guardian can manage moderate amounts of a child’s money, and can receive funds up to $5000 per year to use on the minor’s behalf.  A guardian can become a child’s representative payee for authority to receive any SSI, or social security income for the child.

If a minor’s estate includes a more substantial amount of money or real property, or where the business affairs of the minor may be in jeopardy, or the funds are needed for the support and education of the minor, a Conservator may be appointed by the Court to manage and protect the minor’s estate.  For example, a conservatorship is not needed if the child receives SSI or TAFDC but would be required if the child were to inherit a significant amount of money.

3. Who can be a guardian?

A guardian must be at least 18 years old, must live in the United States, and must be competent to care for the child.  The adult must satisfy the Court that s/he is fit to serve as the child’s guardian.  The Court checks the guardian’s criminal record and determines whether there has been any Department of Children and Families (formerly known as the Department of Social Services) involvement with the child.  A guardian need not be related to the child.  A child may have two co-guardians.

4. How is adopting a child different from being the child’s guardian?

A guardian does not become the child’s legal parent.  Appointment of a guardian does not sever the birth parent’s rights and responsibilities.  The birth parent may be able to visit the child, with the guardian’s permission or by Court order.  The Court can return custody of the child to his or her parent at any time.  Only when birth parents place their child for adoption, or when their parental rights are terminated, do they relinquish all rights to, and responsibilities toward, the child.  Guardianship is not a permanent legal relationship because a parent or another interested party can always seek to have the guardian removed, and because any guardianship will expire when the child turns 18.

5. Can children choose their guardians?

A child aged 14 and older must nominate his or her guardian by signing the proposed guardian’s petition for guardianship before a notary public.  The Court must still approve the child’s nominee.  A court will approve any nominee chosen by the 14 year old child unless the Court finds that the selected guardian is not in the child’s best interest.

6. Does the guardian need to notify anyone of the petition?

The guardian must comply with all court instructions to properly notify interested parties, including the following:

  • The child’s parents, if alive, or the child’s nearest relatives over age 18;
  •  The Veterans Administration (if it owes the child any benefits);
  • The child’s spouse, if any;
  • The child, 14 and over;
  • Any guardian or conservator for the child; and
  • Anyone with whom the child has lived during the past 60 days, excluding foster parents.

The Court requires notice to the above by constable or by a disinterested party.  A petitioner must be able to show the Court that the person actually received a copy of the petition and citation.  Mail is not sufficient.  The Court can allow notice by mail to the last and usual address or by publication, if requested, by allowing a Motion.

7. Does the court appoint a lawyer to represent the child?

The Court has the power to appoint a lawyer to represent the child if the child, or someone on his or her behalf, makes that request.  The Court may also appoint counsel for the minor if the Court feels the child’s interests are not adequately represented.  The Court may also appoint a Guardian Ad Litem to conduct an investigation and make a report to the Court.  In general, the Court does not usually appoint an attorney to represent the child in an uncontested guardianship matter.

8. Where should a guardianship petition be filed?

A guardianship petition must be filed in the Probate Court in the Massachusetts county where the child lives.  A child must generally, absent an emergency, have resided in Massachusetts for six months for the Court to have jurisdiction to hear a petition for guardianship.  If the child does not live in Massachusetts, the petition should be filed in the state or country where the child lives.

All the necessary documents needed to file a petition for guardianship can be found on the trial court’s website at:  http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/upcforms.html

The Massachusetts Probate Court has set up an interactive website to assist in completing the documents needed for a guardianship of minor.  The website can be found at:  http://www.icandocs.org/ma/

9. How much does it cost to petition for guardianship?

There is no filing fee for a petition for guardianship.  The petitioner must pay for the cost providing notice to the parents and other interested parties.  That sometimes requires service by publication in a newspaper selected by the Court.  There is a $50 filing fee for a Bond with sureties. The Court will not generally require a bond with sureties.  Certified Letters of Appointment cost $20 each.  A guardian who cannot afford to pay the fees can ask the Court to waive the fees.

10. Does the guardian need to purchase a bond?

A guardian is obligated to sign a bond and to faithfully discharge all duties according to law.  The Court may require that a guardian file a bond where two other individuals or a bond company guarantees that the guardian will not improperly spend the child’s assets.

11. When do a guardian’s responsibilities end?

Guardianship typically ends when the child reaches age 18, is adopted, dies, marries, or when a judge determines guardianship is no longer necessary.  A guardian may resign with permission of the Court.  The Court may remove the guardian, at the request of another person or on its own initiative, if the guardian is unsuitable or incapable.

12. What is an Annual Report of a Guardian of a Minor?

After a Guardian is appointed, the court oversees the guardianship and monitors the well-being of the minor.  Every Guardian of a minor must fill out an Annual Report of Guardian of a Minor. The Annual Report is a fill-in-the blank court form that reports on the minor’s current situation and notes any changes that occurred. The Annual Report is due every year on the anniversary date of the day you were appointed Guardian, for as long as you are Guardian.

You can find a blank copy of the Annual Report at the Registry office of the Probate and Family Court, or on-line at http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/upcforms.html

Here’s how it works.

1. Get a fill-in-the-blank Annual Report Form. If you use the form on the court website, you can fill it out on-line and print it.

2. Make a Copy for your records. Whether you use a paper copy from the Registry office or complete it on-line and print it, be sure to make a copy of the completed Annual Report for your records.

3. Mail it in or hand deliver to the court on time.Mail the completed Annual Report to the court that appointed you Guardian by the anniversary date of the day you were appointed Guardian.

4. Mark the date on your calendar to send in next year’s Annual Report; the court will not send    you a reminder.

Family Guardianship Clinics, operating weekly at some Probate and Family Courts, offer help filling out Annual Reports to low income eligible clients. If not income-eligible, the Guardian can be referred to a limited assistance representation attorney by asking the staff at Registry for a list of LAR attorneys. Check for a Clinic and its operating schedule or on the senior Partners for Justice webist below at:

www.spfj.org/MSex_Gship.htm

or on the Probate and Family Court website,

http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/upc.html

Veronica Serrato, Staff Attorney at Volunteer Lawyers Project Volunteer Lawyers Project provides free legal assistance to low income clients in a variety of matters including family law, housing eviction defense, bankruptcy, wills, unemployment compensation and guardianship of adults and minors.  Visit www.vlpnet.org.

Disclaimer. The MGA website is maintained exclusively for informational purposes and does not constitute legal advice. Visitors to this web site who have a legal problem should always consult an attorney for legal advice. Viewing or using the information on the website does not create an attorney-client relationship. The guest contributor’s appearance on this website is solely for informational purposes and does not constitute a referral or endorsement of their firm or business, agency or organization. The third party web sites are listed solely as a convenience, and their listing does not imply endorsement of the agencies or organizations.

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