What is a Guardianship? From Austin Estate Planning Lawyer Liz Nielsen

Guardianship by Austin estate planning lawyer

Guardianship, also, referred to as conservatorship in some states, is a legal process, utilized when a person is not able to make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence. A guardian is an individual who cares for someone, often a minor child, who needs special protection. Parents can nominate a guardian in their will or a separate Declaration of Guardian, but a court must confirm and officially appoint the guardian after both parents have passed away. Sometimes the need for a guardian arises when the parents are still alive. For example, if the parents become very ill or are unable to care for the child for some other reason, a court can appoint a person nominated by the parents. If a guardian has not been nominated, the court will appoint a person it believes will act in the child’s best interests, often a family member or friend who is familiar with the child.

A guardianship is an important responsibility—and privilege—that should not be undertaken lightly. Below are a few of the factors you should consider if someone has asked you to assume the role of guardian.

What Are a Guardian’s Responsibilities?

The guardianship statutes of each state set forth a guardian’s duties, responsibilities, and powers. Guardians are considered fiduciaries, and therefore have the general duty to act in a child’s best interests at all times. A guardian’s specific responsibilities are similar to those of parents:

  • provide food, clothing, and a place for the child to live (either with the guardian or another caretaker)
  • receive and maintain money owed to the child for care or support
  • apply for government benefits
  • bring a lawsuit on the child’s behalf, if necessary
  • maintain, account for, and preserve any funds exceeding the amount needed for the child’s support
  • maintain the child’s personal property
  • ensure that the child receives a proper education
  • authorize medical care needed for the child’s health and well-being

Note: A guardian is not legally obligated to provide for the child from the guardian’s own funds. In addition, a guardian must obtain court approval for certain actions—for example, changing the child’s place of residence to another state.

How Long Does a Guardianship Last?

Certain events typically end a guardianship. A guardianship of a minor child ends when the child reaches the age of majority under state law, usually eighteen or twenty-one. A guardianship of a child also terminates if the child passes away. If the guardianship is no longer needed—for example, if a parent becomes available to care for the child—the court may remove the guardian. If a guardian is no longer able to serve, the guardian must file a petition to resign, and the court will appoint a replacement guardian—optimally, an alternate or successor guardian nominated by the child’s parent.

Is a Guardianship the Same as an Adoption?

No. Unlike an adoption, in which a child’s parents permanently relinquish all parental rights and obligations, a guardianship does not terminate the legal relationship between a child and the child’s parents. Rather, a guardianship is a legal relationship that gives the guardian the rights and obligations specified by state law.

Note: A guardian of a person is different from a guardian of an estate. A guardian of the estate is appointed by a court to manage and protect a child’s assets if there is a substantial amount of money or property involved. A guardian of the estate may be required if the child has money or property in their own individual names and there are not alternatives to guardianship (such as the creation of a trust).

Is a Legal Guardianship Really Necessary?

Yes. If you will be caring for a child who is not your own for an extended period of time, it is important to be the child’s legal guardian. Otherwise, you will have difficulty carrying out basic responsibilities like authorizing medical care and enrolling the child in school.

Being a guardian is an important responsibility. If a family member or friend wishes to name you as a guardian for a child, it is important to seriously consider whether you have the time, patience, and ability to take on this role. While it can be rewarding because it allows you to invest in the life of a child, you should be honest and decline to accept the role if you do not believe you can adequately perform the responsibilities of a guardian. If your family member or friend passes away without naming someone else as guardian in their will, additional time and expense will be required to determine who will replace you. Moreover, the person the court appoints may not be someone the child’s parents would have wanted to care for their beloved child.

We Are Here to Help

If you have been appointed as a guardian for a child, we are available to answer any questions you may have about your responsibilities. We can also help if you need to resign as a child’s guardian due to changed circumstances. Please call us today to set up a meeting. We are happy to meet with you by phone or video conference if you prefer.

Give Us a Call

Nielsen Law PLLC provides family focused estate planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area.  For more information and to learn about our firm, please contact us.