It is unfortunate, but sometimes biological parents are unable to care for their children. Naturally, many of these parents don’t want to put their child up for adoption but want their child to be cared for until they can get back on their feet; guardianship allows them to do this. A guardianship is a useful tool for allowing someone, who is not the child’s parent to:

1. Take custody of the child that is not their biological child;
2. Manage the child’s estate (property in their name); or
3. Both

This article will discuss “probate guardianships”, which are typically brought by the non-biological parent seeking to be appointed as guardian of a child or by another member of the biological parent’s family to have the Court appoint someone to care for the child.

As a practical matter, parents who can’t care for their child but don’t want to put their child up for adoption, leave their child with a close friend or other members of their family. Unfortunately, those individuals do not have the legal authority to make decisions on behalf of the child; being appointed as a guardian gives that guardian all the rights and responsibilities that a biological parent would have. In general, a guardian can only be appointed for a minor (someone under 18 years of age), but in situations involving young immigrants they can pursue special immigrant juvenile status; special immigrant juvenile status allows for a guardian to be appointed to an individual who is up to 21 years of age.

It is important to note the key differences between guardianship and adoption. In a guardianship:

1. The biological parents retain their parental rights, and can request reasonable contact with their child;
2. The Court has the authority to undo the guardianship once the biological parent shows they can care for their child; and
3. The Court can oversee the appointed guardian.

In an adoption:

1. The legal relationship between the biological parent and their child is permanently severed;
2. The adoptive parents obtain the status as the “legal parent” [Cross Link to Parentage Article];
3. The adopted child is treated as the legal child of the adoptive parents for all purposes, including inheritance;
4. The adoptive family is not overseen by the Court.

Guardianship and adoption have distinct purposes, but the result is to place a child in an environment where they can be supported and grow into successful members of society.

What Types of Guardianships Are There?

There are two (2) kinds of “probate guardianships:

1. Guardianship of the person; and
2. Guardianship of the estate

Guardianship of the Person

In this type of guardianship, the appointed guardian has the same rights and responsibilities as the biological parent; the guardian has a duty to properly care for their ward. Further, the guardian possesses full custody (both physical and legal) and has the authority to make all decisions relating to well-being of the child as the biological parent. Some of the responsibilities a guardian has to the child include:

1. The guardian must provide the child with food, clothing, and shelter;
2. The guardian must ensure the child’s safety and protection;
3. The guardian must enable to the child to grow both physically, mentally, and emotionally;
4. The guardian must provide the child with medical and dental care;
5. The guardian must provide the child with an education, including any of the child’s special needs.

A common misconception about guardianships is that the biological parents do not love or care for their child – the clear majority of guardianships arise because the parent is presently unable to properly care for their child and want to put their child in an environment that is best for them. Some of the reasons guardianships occur is because one (1) or both “legal parents”:

1. Have a serious mental illness;
2. Have a severe physical disability;
3. Are in the military and are about to be deployed;
4. Have to attend a rehabilitation program to get past an addiction;
5. Have been convicted of a crime, and must serve time in jail; or
6. Have a history of domestic violence and need to seek treatment.

Much like custody determination, the Court uses the “Best Interest of the Child Rule” when it determines whether to appoint a particular guardian to a child. Ultimately, the Court wants the child to be raised in a stable, loving, and safe environment.

The second type of guardianship occurs when the child has become the legal owner of property (personal or real). In these situations, a guardian is appointed to manage the child’s money.

Guardianship of the Estate

As mentioned above, a guardian is appointed to protect a child’s estate when they obtain property (real or personal) until that child reaches the age of 18. The most common situation where a child needs a guardian to oversee their estate arises when the child inherits assets; generally, the Court appoints a surviving “legal parent” as the guardian of the child’s estate. Additionally, it is entirely possible for one individual to be both the guardian of the person and the guardian of that child’s estate.

The guardian of the estate owes a “fiduciary duty” to the child, and is obligated to:

1. Manage the child’s assets in accordance with their fiduciary duty;
2. Make intelligent investment decisions on behalf of the child in accordance with their fiduciary duty (this general includes a duty to diversify the child’s portfolio); and
3. Manage the child’s property in accordance with their fiduciary duty.

This concept of “fiduciary duty” is of the utmost importance and should not be violated under any circumstances.

What is the “Fiduciary Duty”?

The fiduciary duty constitutes the highest standard of care in law. The individual who owes a “fiduciary duty” is referred to as the “fiduciary”, while the person who gains the benefit of that duty is rightly referred to as the “beneficiary” or “principal.” It is helpful to look at the “fiduciary duty” through the lens of corporate law to clarify exactly what the “fiduciary duty” entails. There are five (5) broad categories of duties that are included within the fiduciary duty:

1. Duty of Care;
2. Duty of Loyalty;
3. Duty of Prudence;
4. Duty of Good Faith
5. Duty of Disclosure

Duty of Care – A fiduciary is required to use all material information, which is readily available to them, prior to making a decision effecting the beneficiary’s assets. To determine whether the fiduciary was informed of all material information, the Courts will look at the quality of the information, the advice available to the fiduciary, and whether the fiduciary had an opportunity to acquire additional information prior to making their decision. Additionally, the fiduciary is required to view the information available to them with a “critical eye” rather than blindly accept the information as accurate.

Duty of Loyalty – A fiduciary is not allowed to use their position of confidence and trust to the beneficiary for their own personal gain. This duty is encompassed in a public policy which requires that the fiduciary scrupulously advance the beneficiaries interest while simultaneously avoiding taking any actions that benefit them; the reasoning is that whatever benefit the fiduciary obtained, could have been obtained by the beneficiary had the fiduciary used their assets for that purpose.

Duty of Prudence – A fiduciary has a duty to protect the beneficiary’s assets using the degree of skill, caution, and care that a prudent fiduciary would exercise.

Duty of Good Faith – A fiduciary has a duty to make a good faith effort to further the beneficiary’s interests, avoid any violations of the law, and fulfill his obligations to the beneficiary.

Duty of Disclosure – The fiduciary has a duty to utilize complete candor when communicating with the beneficiary.

As discussed above, there are two (2) types of probate guardianship: (1) guardianship of the person, and (2) guardianship of the estate. A guardianship of the person is utilized when the biological parents, for whatever reason, is unable to properly care for their child but want the opportunity to resume parenting when they are able. To accomplish this, they seek an order from the Court appointing a legal guardian of the child until they can care for their child. While acting as a guardian of a child, the guardian has all the rights and responsibilities of a “legal parent.” A guardianship of the estate occurs when a minor has acquired substantial assets (typically an inheritance), and an individual needs to be appointed to protect those assets. This guardian is typically a surviving parent. The guardian of an estate is held to a very high standard of care known as the “fiduciary duty.”

If you or a loved one believe that a guardianship is necessary, contact Maples Family Law today.

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