How To Get Guardianship of a Family Member
Becoming the legal guardian of a minor is a complex legal process involving negotiation with the child, their parents or current guardians, and your state’s family or probate court. The purpose of the guardianship system is to ensure that a child finds a living situation suited to their best interests. If you are pursuing guardianship, be prepared to demonstrate to the court and other people with an interest in the child’s well-being that you can provide them with the comfort and security they deserve.
We’ll walk you through the basic steps of the guardianship process, including how family and probate courts make decisions regarding guardianship and some alternative arrangements to consider.
How To Get Guardianship of a Family Member
The following are the basic steps most states’ family and probate courts require for guardianship. Note that guardianship is a separate arrangement from custody. “Custody” refers to an agreement between a child’s biological or adoptive parents. Alternatively, “guardianship” is an arrangement involving an adult caretaker who is not the child’s parent.
Attempt to come to an agreement out-of-court
Before beginning legal action to obtain guardianship over a family member, see if you can come to an agreement with their parents or current guardian. The legal process can be lengthy and expensive. The process could go more smoothly if both parties agree on a course of action before involving the courts. Petitions for guardianship that do not have the blessing of the child’s parents face an uphill battle. If a parent does not want someone to be the guardian of their child, the court will have to find evidence that they are unfit before going against their wishes.
File a petition for guardianship
By petitioning, you inform the court of your intent to pursue guardianship over a ward. You must complete a form specific to your state, outlining details about both you and the person you wish to have guardianship over. The information required will likely include that person’s current situation, their assets, and your reasons for pursuing guardianship. Your state may have separate forms for guardianship over a minor and guardianship over an adult who is incapable of caring for themselves.
Notify relevant parties
After petitioning for guardianship, you must make sure the child’s biological parents, current caregivers, or any other parties with a stake in their well-being are aware of your intentions. Be sure to notify anyone else that the child has chosen their guardian and, if both parents are deceased, any adult siblings. These individuals have the right to let the court know whether or not they believe you will be a suitable guardian and, therefore, must have the option of being present at your hearing.
Complete necessary paperwork
Before granting you guardianship over a ward, your state’s family court will ask you to complete several official documents pertaining to their current situation. You will most likely need their physician to complete a medical report, and, depending on the ward’s capacity, you may have to detail your plan to provide them with healthcare. Consult a family attorney in your state to ensure that you are up-to-date on all necessary paperwork.
Attend guardianship hearing
To be appointed a child’s guardian, you will have to attend a court hearing in which a judge will determine whether or not you are suitable for the task. If you have already come to an agreement with the ward, their parents or current guardians, and any other interested parties, and if the guardian ad litem agrees that you will be a suitable guardian, this hearing will likely proceed smoothly. However, if any interested party disagrees that you would be the ideal guardian, the judge may schedule a trial for a later date.
Complete annual reports
After becoming a child’s legal guardian, you must demonstrate to the court that you are providing them with the caring and healthy environment that they require on a regular basis. Each year, you will complete and submit an annual report in which you notify the court of the ward’s current address, contact with their parents, medical providers, schooling, and other important information. If you do not submit your annual report, you risk losing guardianship and facing financial penalties.
Source: https://www.texasbar.com/AM/Template.cfm?Section=Free_Legal_Information2&Template=/CM/ContentDisplay.cfm&ContentID=37357
https://www.cclerk.hctx.net/Forms/Uploads/I/I0234.pdf?t=
https://courtforms.jud.state.ma.us/publicforms/PFC0084
How Do Courts Decide in Guardianship Cases?
Family courts take great pains to ensure that guardianship is in a child’s best interests and that a petitioner is up to the task before granting it. During the legal process, you can expect the family or state’s probate court to consider the following factors.
Considering other options
Guardianship is a significant legal agreement that affects the rights of the ward. Therefore, many family courts will recommend other measures to help the ward receive the help they need while still retaining all of their rights. For example, if you want to help make decisions regarding a child’s healthcare, the court may recommend that the parents grant you power of attorney or make you a healthcare proxy.
Pre-existing relationships
When a child, for whatever reason, can no longer live with their biological parents, they must have as much stability as possible. Therefore, a court will be more likely to appoint immediate family members or close family friends as guardians. If the ward’s biological parents wish for you to become their child’s guardian in the event that they, the parents, die or become incapacitated, they can state this in their will. If the probate court finds you to be a suitable guardian, they will most likely grant that request.
In some states, the ward can suggest a guardian that they have a close relationship with. Massachusetts, for example, lets minors who are 14 or older object to an appointed guardian or nominate a guardian of their choice. However, the court may override their wishes.
Source: https://www.mass.gov/info-details/mass-general-laws-c190b-ss-5-203
https://www.mass.gov/files/documents/2016/08/pu/mpc441-notarized-and-verified-consent-or-nomination-of-minor-fill.pdf
Parents’ unsuitability
In extraordinary circumstances, a family court may grant guardianship to someone other than a child’s parents if their parents are not suited to raising children. While the definition of an unfit parent varies by state—some states forgo a formal legal definition entirely—the term generally refers to parents who are at high risk of physically or emotionally harming their children. A history of abuse, neglect, or abandonment may persuade a judge that it is in the child’s best interests to live with a guardian other than their parents.
Source: https://www.masslegalservices.org/system/files/library/Chapter%2013.pdf (pgs. 5-6)
Guardian ad Litem’s investigation
After a petition for guardianship is initiated, the court will appoint a Guardian ad Litem (GAL). A GAL is a legal professional tasked with serving as a temporary guardian to the intended ward while determining whether or not they should be placed under guardianship. The GAL will talk to the ward to see how capable they are, how suitable their current living situation is, and how they feel about the petitioner becoming their guardian. After their investigation is finished, the GAL will advise the court on what arrangement would be in the ward’s best interest.
Source: https://www.law.cornell.edu/wex/guardian_ad_litem
Alternatives to Guardianship
Temporary conservatorship
Sometimes, a ward may only require a new guardian for a limited amount of time. For example, suppose a single parent is medically incapacitated or serving a prison sentence. In that case, they may choose to designate a temporary guardian for the length of their medical treatment or their sentence. In this arrangement, the guardian will relinquish their rights over the ward to the parent after an agreed-upon period of time or until they are ready to regain custody.
Power of attorney
If you believe that it would be in a family member’s best interest for you to be able to make certain decisions for them but do not think that full guardianship is necessary, you might instead consider obtaining power of attorney (POA). A POA lets an agent make decisions on behalf of someone who cannot make those decisions for themselves, known as a principal.
Someone with POA over a minor can enroll them in schools, choose their medical providers, and make other important choices relating to their well-being. POA over a minor is usually restricted to a short period of time and granted by their parents or guardians.
Healthcare proxy
If you are considering guardianship because you are concerned about a family member’s future medical treatment, becoming their healthcare proxy is a more straightforward process that may fit your needs. Being a healthcare proxy allows you to make decisions concerning someone’s medical care in the event that they are unable to do so themselves. A healthcare proxy might request a specific physician that the principal prefers, ensure that the principal’s treatment aligns with their religious beliefs, and accept or refuse some treatments.
Emancipation
If a minor can no longer live safely with their parents, they may opt to petition the court for emancipation. Emancipation gives minors the right to make serious decisions about their housing, finances, healthcare, and schooling, which would otherwise be the domain of their parents or guardians. Typically, a minor will have to demonstrate that they are already self-sufficient and will have to be close to the age of majority. Most states require a minimum age of 16 to petition for emancipation, though some are as low as 14 and may consider emancipation for minors 13 and younger in extraordinary circumstances. If a minor has already shown that they are capable of making responsible decisions for themselves, it may make more sense for them to seek emancipation than guardianship.
How To Find a Good Family Lawyer
Before petitioning for guardianship, it is important to consult a family lawyer and discuss the implications of guardianship, any alternative arrangements, and how likely the court is to decide in your favor. Expertise.com’s family lawyer directory and concierge service can help you find an experienced professional in your area to assist you through this challenging process.
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