Guardianship for a Child Fact Sheet
A guardian is usually an adult person, agency or trust department of a bank appointed by the Probate Court to take responsibility for the care and management of a person and or his property (estate).
Why does a child need a guardian?
A guardian may be appointed for a child who is under 18 years old because the parents are deceased or because the parents are unable or unsuitable to care for the child.
Parents do not have an absolute right to settle personal injury claims on behalf of their minor child. The Probate Court must approve of such settlements. If the settlement is more than $10,000, the Court will require the appointment of a guardian of the estate. Insurance companies may require a guardian to be appointed before settling a claim. Personal injury or damage claims by minors may be settled without the appointment of a guardian if the settlement of the claim will be less than $10,000.
Who Chooses the Guardian?
Probate Court appoints a guardian to serve both for the person and the estate of the ward. A separate guardian for the estate is only appointed if the court decides it’s necessary. A minor over age 14 or the parents through a will may request a specific person to be the guardian for a minor.
What Is the Appointment Procedure?
An ‘interested party’ or the Probate Court itself may file to have a guardian appointed. The application is filed in the county where the ward lives. The application must include a statement by the guardian that he is willing to act as guardian and a bond as required by law.
The child’s parents are served with the application. They receive notice of the date and time of a hearing. The hearing is held by a judge or magistrate. The court determines if a guardian is necessary, suitable and understands his duties.
What Are The Types of Guardianships?
A guardian may be appointed as either guardian of the person, the estate or both. A guardian of the person controls and protects the minor child. A guardian of the estate controls and protects the property of the child.
Responsibilities of the Guardian
A guardian must file an inventory within 30 days after appointment. A guardian of the estate must file a written account with the Court at least every two years. The account shows the income and expenses of the child’s estate.
If a guardian fails to timely file a report, inventory or accounting, the Court may cite a guardian to appear. The Court may issue a fine, reduce the guardian's fee, or remove the guardian.
The guardian must obtain the approval of Probate Court before entering into a contract or lease, selling assets or settling any personal injury claim for the ward.
The Court may at any time remove the guardian if required for the best interest of the ward.
A guardian may apply to end a guardianship if the estate is less than $10,000. After approval by the court, the funds may be transferred either:
- to an account to be given to the child when the child is 18; or
- to be delivered to a parent of the minor.
Custody vs. Guardianship
Non-parents may seek legal control over minors by filing for guardianship in Probate Court or for legal custody in Juvenile Court. Probate Court has jurisdiction over the estates of minors and over insurance settlements.
This article is meant to give you general information and not to give you specific legal advice. Prepared by Community Legal Aid Services, Inc. Updated May 2012. CE-44-F170-CLAS