Legal Guardianship for Children
In this article I will address the process for the establishing and some of the important details about the guardianship of minor children. Legal guardianship is only established by court order. Guardianship for minor children in Arizona happens through one of two courts. The proposed guardian must accept an appointment from the court and the guardianship relationship continues until it is terminated by court order. A guardian can be an individual, or it can be an entity such as a private fiduciary. Although, public fiduciary’s typically do not act as guardians to minors. The guardian of a minor is generally determined by a person whose appointment will be in the best interest of the minor.
Most people think of the guardianship process that occurs after the parents have died and named a guardian in their will. There are times when parents die without naming a guardian. In either case, the guardianship process occurs in probate court. The other type of guardianship process occurs when the parent(s) of the minor child are still alive but are unable or unwilling to provide parental control and care. This type of guardianship process only occurs in Juvenile Court after the court has entered a finding of dependency for the minor child. In those cases, the child may have been taken out of the home and be in the foster-care system.
Any person interested in the welfare of a minor child may petition the court for appointment of a guardian. Once the petition has been filed, the court will then set a hearing date. If the child is 14 or older, the child must receive written notice from the person petitioning the court. Written notice should also be given to the person who has primary care and custody of the minor child during the 60 days prior to the date of the petition.
Once the hearing has occurred and the court determines that a qualified person is seeking appointment as the guardian of the child, it is found that the appointment is in the best interests of the child, and all procedural requirements have been met, the court will appoint the guardian. It is also possible that the court will appoint a temporary guardian for not longer than 6 months.
There may be times when the court determines that the interests of the child are not being adequately represented in the guardianship process. In those cases, the court may appoint an attorney to represent the child’s best interests in the guardianship process. If the minor child is 14 or older, the judge will also take into account and consider the preferences of the child with regard to the appointment of an attorney.
When guardianship is established by a will after the child’s parents have died, the appointment of the guardian becomes effective once the guardian’s acceptance is filed in court. When the guardianship is accepted, the guardian must give written notice to the child and to the person currently caring for the child or to the child’s nearest adult relative. A child who is 14 years or older has the right to file a written objection to the appointment of the proposed guardian. This written objection must occur before the appointment of the guardian or within 30 days after the child received notice of the guardian accepting the appointment.
When the court is making a decision about appointing a guardian, the court will make a decision based on the best interests of the minor child. Although Arizona law states some preference for family members as guardians, the best interests of the child take precedence. As a result, sometimes the guardian appointed will be a family member, or it may be another person. If the proposed guardian is someone who is not related to the child, the court will require the potential guardian to furnish a full set of fingerprints in order for the court to conduct a criminal background check, including submitting the fingerprints to the FBI.
Once the guardian is appointed, the court will issue letters of guardianship. The letters establish the rights of the guardian and may be required by school districts or other authorities to establish the guardians right to make decisions for the child.
Powers and Responsibilities of the Guardian of a Minor Child
A guardian has the same powers and responsibilities of a custodial parent regarding the minor child’s support, care, and education. There are some differences however. Unlike a parent, the guardian is not personally liable for the child’s expenses and is generally not liable to any 3rd parties for any actions or conduct of the minor child. So there are some differences in the legal liability for parents versus guardians.
It is the responsibility of a guardian to be personally acquainted with the child and maintain enough contact to understand the child’s abilities, needs, limitations, opportunities, and health (both physical and mental). The guardian should also take reasonable care of the child’s personal effects and property. Money of the child should be used for support, care and education of the child. Any excess money is required to be preserved for future needs. There are times when another person has been appointed as conservator for the estate of the minor child. The conservator is responsible for the financial management of the child’s affairs. If there is excess money after the current needs of the child have been taken care of, this money should be given to the conservator for the future.
A guardian is allowed to receive money for the support of the child. The guardian takes physical custody of the child and sets up the home (or residence) for the minor child. The guardian and child can live in or out of state as long as the location of the residence is not in conflict with the terms of the court order. The guardian facilitates the education and social (or other) activities of the minor child. Consent to medical or other professional care, treatment or advice for child falls upon the guardian. The guardian also has the right and responsibility to consent to the marriage or adoption of the minor child.
If the child under guardianship is incapacitated and determined to be unable to conduct their own affairs, any interested person may initiate guardianship proceedings and request that another guardian be appointed when the child turns 18 years old. The child will be evaluated to determine whether or not a guardian is necessary once he or she turns 18.
How Guardianship Differs From Adoption
Guardianship and adoption are similar in that the guardian will provide most of the responsibilities and fill the basic role of a parent in a minor’s life. There are some very significant differences, however, which should be noted and some examples follow.
In Legal Status:
– Birth parent’s rights are voluntarily relinquished or involuntarily terminated
– The Adoptive parent is given ALL rights and responsibilities that once belonged to the parent
– Adoption is a permanent, lifelong, legal relationship
– Birth parent’s rights may or may not be voluntarily relinquished or involuntarily terminated.
– Guardian is given legal responsibility for the child and assumes the rights of care, custody, and supervision of the child.
– When married, one OR both spouses may be named legal guardian.
– The birth parents retains “residual rights” when parental rights have not been relinquished or terminated.
– These rights include visitation, choice of religion, and the right to claim the body of a deceased child.
– The court makes all decisions regarding the transfer of guardianship, but the birth parents can request that guardianship be taken away from the present caregiver and that the child be returned to their care if parental rights have not been terminated.
In Decision Making:
– All decisions are made by the adoptive parent.
– Major decisions regarding school, medical treatment, and consent for most other life decisions are made by the guardian
– Birth parents retain important rights, e.g. choice of religion and visitation when parental rights have not been relinquished of terminated.
– The Adoptive parent decides the child’s legal name.
– Usually the child retains his/her last name.
– An adopted child will have all the same rights as birth children when the adoptive parent doesn’t have a will. Otherwise, inheritance rights are established through valid will as they are for birth children
– The child has no rights of inheritance from the guardian unless the child has been included in the will of the guardian.
In Relationship to Birth Parents:
– The adoptive parent has the right to determine if the child will have any relationship with the birth parents.
– If the birth parents’ rights have not been terminated, they have the right to visit the child unless a court orders no visits. the guardian wil have input into how visits are structured , but cannot perevnt visits from occurring. If the guardian and parents can not work out visitation scheduling they may seek court involvement. Birth parents also have the right to petition the court to have the child returned to them.
When a Conservator is Necessary
A conservator must use the assets of the minor only for the minor’s support, care, education or benefit and never for the benefit of the conservator. If a conservator is misusing a minor’s funds in some cases they can be exposed to potential personal liability or court sanctions.
The parents or guardian of a minor child may petition the court for a conservatorship for a minor under several circumstances. Those circumstances are set forth in Arizona Revised Statute § 14-5401. While this list is not exhaustive, the general circumstances are as follows:
– The minor may own property that needs management, or is otherwise uncollectable due to the minority.
– The minor may own money or funds that need management, or are otherwise uncollectable due to the minority – The minor may have business or affairs that may be put at risk or wasted due to the minority.
– The minor may have funds set up for the minor’s support or education that need management and protection.
Once the petition is filed with the court, and notice has been given, the court will hold a hearing to determine if a conservatorship is appropriate. In order for a conservatorship to be established the court must find that the minor is unable to manage their own affairs and that the property will be wasted if not properly managed. A conservatorship may continue beyond the minor’s eighteenth birthday if the court determines the conservatorship is appropriate.
Ending a Guardianship
Any person interested in the welfare of the child can petition for removal of a guardian on the grounds that the removal would be in the best interests of the child. A guardian can also petition for permission to resign. At the time the guardian petitions to resign, the guardian can request the appointment on a new guardian. During the proceeding to remove a guardian, the court can appoint a lawyer to represent the interests of the child.
One way in which guardianship differs from parenthood is in that guardianship ends when the need for a guardian comes to an end. Guardianship may also be terminated if one or more parties involved has reason to ask the court to end the guardianship. If a parent objects to the continuation of a guardianship, even if he or she originally consented, the guardianship will almost certainly be terminated by the court once the objection is properly filed. There may be a slight delay to give the guardian time to initiate a Juvenile Court proceeding, but the guardianship can not continue over a parent’s objection unless the parental rights have been terminated. If a guardian chooses to resign the court will seek to appoint a successor, but in the absence of any choice the guardianship may be terminated. If the minor turns 18 or dies the guardianship terminates automatically.
If you are in need of establishing guardianship for a minor child, Arizona Statewide Paralegal is a legal document preparation service that offers a flat fee service for preparation of legal documents related to the guardianship minor process. We offer expert case management legal document preparation services, including ensuring the proper forms are completed and filed. We also ensure all parties are properly served so that the process is as smooth as possible. Contact our office today to learn more about establishing guardianship for a minor child.