Guardianship is a legal arrangment in which a responsible authorized adult agrees to care for someone who can’t care for him or herself. Guardians are usually used for children who don’t have parents or don’t have capable parents, and for some adult children with special needs. Seniors may also need a guardian.
When children need guardians, a court-approved guardian normally take physical custoy of the child. The guardian is then responsible for the upbring of the child and the physical and mental well-being of the child. Guardians make numerous health, school, social, and makes daily financial decisions for the child. In essence, the guardian of a minor stands in place of the parent. Other care decisions a guardian of a minor makes includes choices about diet and religious upbrining. Guaridans make sure a child sees a doctor if the child becomes ill.
In Tennessee, another person is normally designated to make the financial investment decisions for the child. This person, called a guardian of the estate or a conservator, is repsonsible for any assets or income due the child (such as the proceeds of a parent’s estate). The financial guardian normally creates a trust account where the principal can earn interest or be invested. The income is then used for the daily care of the child.
The guardian of the person and the guardian of the estate are often the same person. There may be times, though, when the court deems it best that there be separate guardians for the minor.
When a guardian of a child may be needed
Typically, the parents are the guardians of their children by virtue of their parentage. When parents divorce, they need to work out who will have legal and physical custody of their children.
A minor child may need a guardian if:
- Both parents are deceased
- A parent or parents become disabled
- A parent or parents abandon the child
- One or both living parents is unable to take care of the child for any reason
A guardan of the estate may be required if a child receives an inheritance, a settlement, a gift, or a legal award.
Eligibility to be a guardian
Guardians need to seek court approval so they can formally be appointed a guardian. The guardian should have a strong relationship with the child. It is often desirable, but not necessary, that the guardian be a blood relative such as an adult sibling, grandparent, or aunt of the child who needs care and protection. Guardians appointed by a parent’s will are given first priority.
The court will require that:
- The guardian be 18 years-of-age or older
- Be physically and emotionally fit to take care of the child
- Have the financial ability to raise the child
- Be able to provide a safe and proper home for the child to live in until he/she reacheas the age of majority – typically 18
Children over 12 can give input into who will be their guardian. Changes to an existing appointment may also be granted or modified depending on the best interests of the children and whether the appointed guardian is complying wither duties. Guardians of the property are generally required to file inventories and accountings of how the assets and income are being handled.
Guardian appointments do try to give living parents the right and ability to visit with their children.
Trust agreements can often be used to expedite or even avoid the need for the formal appointment of a guardianship of the minor’s property.
Anyone who has been chosen as a guardian through a will, or who is seeking approval of a guardianship for a loved one, should speak with the experienced family lawyers at the Law Offices of Adrian H. Altshuler & Associates. Our Franklin, Columbia, and Brentwood attorneys help caring relatives and friends obtain approval to be a guardian. We also help children who need representation. For help with guardian and other family law issues, please call us at 615.412.1121, or use our contact form to schedule an appointment.