A Probate Guardianship of the person is when the Probate Court appoints an adult who is not the minor’s parent to take care of the minor. This is a legal action designed to give someone other than the minor’s parents care, custody, and control of the minor. If the child is a dependent (foster care) or a ward (probation) of the juvenile court, guardianship must be decided in that particular juvenile court. Guardianship is sometimes needed when the minor’s parents are unwilling or unable to care for the child, or where parental control is detrimental to the child. If the child is undocumented and has suffered from abuse, neglect or abandonment, immigration relief may be available. See Special Immigrant Juvenile Status.
What does a Guardian of the Person do?
The guardian generally has the same responsibilities as a parent. That means the guardian is responsible for the child’s care, including the child’s:
- Food, clothing and shelter
- Safety and protection
- Physical and emotional growth
- Medical and dental care
- Education and any special needs.
Who can be legal guardians and what happens to the parents’ rights?
Relatives, friends of the family, or other people can ask to be legal guardians. Guardianship of the person does not permanently terminate parental rights. It only suspends those rights while the guardianship is in place. If the child’s parents don’t object to the guardianship, a judge may order a guardianship if it is necessary or convenient. If one or both of the parents objects to the guardianship, a judge may order a guardianship only if:
- Staying with the parents or one of the parents will be detrimental to the child, AND
- Creating the guardianship will be in the best interest of the child.
Unless someone petitions the court, the guardianship remains in place until the child turns 18.
What if property or assets are involved?
Guardianship of the person does not give the guardian control over the minor’s property or other assets. If this control is needed, guardianship of the estate should be sought.
If you are a minor’s caregiver and are looking to only enroll a minor in school or authorize medical treatment, another option may be a form called the “caregiver’s authorization affidavit.” This differs from guardianship because it is not necessary to go to court for the affidavit. Someone who is related to the minor can fill out this form. This lets the person who signs the form enroll the minor in school and get medical treatment for the minor. A non-relative who fills out this form can sign up a child for school and agree to school-related medical care.
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