If you’re in the middle of a divorce and you have children under the age of 18, chances are you and your spouse are those children’s legal guardians. In some cases, however, either temporary or even permanent guardianship of a minor child has to be provided, and when this happens, it’s good to know a little bit about each type. This is important because there are many different reasons to assign someone to be the guardian of your child, and it includes more than just parents who are incapacitated for one reason or another.
What Is Guardianship?
A guardianship is needed when a parent is unable to make important decisions for his or her child. A parent who is incapacitated is the first thing most people think of when deciding if a child needs a guardian, but there are other reasons as well. For example, the following situations might require establishing a guardianship of a minor child:
- When there is no parent to care for the child.
- When the child has inherited assets and those assets need to be protected until he or she is grown.
- When a parent has a mental illness or disease that prevents him or her from being able to make decisions for the child.
- When a parent is physically or mentally unable to make decisions for the child.
Typically, a guardianship lasts until the child turns 18, but if the child hasn’t graduated from high school by age 18, the guardian can always request that the arrangement continue until the child turns 19 or graduates from high school. In cases where a guardian is assigned to a child, that child is known as the protected person.
How Is a Guardianship Arranged?
In divorce situations, the child, parents, and prospective guardian are all interviewed, and each of their preferences is recorded so that a final decision can be made. The court, when deciding who to choose as guardian, takes into account things such as the relationship between the parents and the proposed guardian, the stability of the child’s upbringing, and the ability of the proposed guardian to take on this responsibility. In the end, though, what the judge considers most important is the best interests of the child.
There are three main types of guardianships, and they are described below.
1. Guardianship Over the Person
In this instance, the guardian is legally allowed to make decisions for the minor only, but not necessarily decisions related to the minor’s estate or any other legal matters. The needs being taken care of under this type of arrangement typically include the minor’s personal and physical needs; for instance, things such as food, clothing, shelter, medical care, and education. A legal guardian will make these important decisions until the child reaches the age of 18 (in most states), or until another time if the arrangement is set up to be a temporary one.
Making medical decisions for the child is an important aspect of this arrangement, which is why choosing the right guardian is so important. It’s also good to keep in mind that the child’s legal parents still have the responsibility to provide for that child’s financial needs, even though the guardian will be responsible for most of the other needs.
2. Guardianship Over the Estate
Also known as a financial guardianship, this is when the court assigns a guardian over a minor child who has substantial assets, including money and property. If the parents aren’t necessarily the best ones to watch over and guard the child’s assets, for whatever reason, a guardian may be assigned to do so. Typically, these guardians make all financial decisions for the minor child until the child turns 18 or until the assets are depleted. In a lot of cases, a guardian is preferred or even required once the worth of the child’s assets reaches $25,000, but that will vary with each state.
The important thing to remember in these arrangements is that the guardian will be making financial decisions for the child starting as soon as he or she legally becomes the guardian of that child.
You can also be assigned the guardian for both the minor and the minor’s estate under certain circumstances.
3. Guardian Ad Litem
If you are designated the guardian ad litem over a minor child, you will be responsible for representing that child in a legal proceeding. Guardian ad litem arrangements are not uncommon in divorce cases, in certain probate matters, or in cases where the child has been neglected or abused. This type of guardianship is typically limited to a certain proceeding, and it is often court-appointed. As a general rule, the courts do not like to get involved with assigning people to be guardians over a minor; however, if it is in the best interests of the child, a court-appointed guardian ad litem arrangement is often the best thing to do.