Guardianship

Minors have neither the legal right to manage property nor to make many major life decisions, such as to determine their place of residence or to decide what school they will attend. For most minors, this lack of legal capacity is not an issue; most do not own significant assets. Also, until a minor reaches the age of majority (age eighteen in most states), marries, or is otherwise emancipated, a minor's parents are legally responsible for the minor's custody and care.

Guardianship of a minor's property becomes an issue if the minor acquires significant assets, due to an inheritance or personal injury settlement, for example. A minor's parents do not have the legal right to manage their child's property. For them to do so, they must be appointed as the minor's guardians by a court.

Guardianship of a minor's person becomes an issue whenever there is need for someone other than the parents to assume the child's custody. Guardians must be appointed following the death of both parents unless an adoption can be arranged. This guardian will usually be a close family member. Guardians are appointed following termination of the parents' parental rights, which may occur due to a finding of abuse or other unfitness. Termination of parental rights permanently severs the parent-child relationship, including the parents' right to the child's custody.

Guardians sometimes are appointed with the consent of the parents. Many states authorize the appointment of standby guardians. Standby guardians are appointed for parents with progressive and disabling conditions, such as AIDS, that are likely to render them incapable of caring for their children. The court appoints the guardian while the parent still has capacity. The guardian then stands by, taking office only when the parent's incapacity is certified. Consent guardianships are also frequently used when a child lives with a grandparent or other relative. For example, appointment of the family member as guardian may be necessary to qualify the child for public school attendance.

Guardianship is a concern of many parents with minor children. They are concerned about who will take custody of their children in the event of their deaths. They are also concerned about how property the children may inherit from them will be managed. Many of these concerns can be addressed in the parents' wills. Although wills are primarily directed at the disposition of property after death, they may also be used to nominate guardians for minor children, both for the minor's care and for management of the minor's property. In some states a parental nominee has an automatic right to be appointed guardian upon the parents' death. In other states, a court must approve the parents' choice, although this approval is usually automatic. Also, in many states a parental nomination is ineffective if a minor age fourteen or older objects. In those states, a minor age fourteen or older has the right to nominate his or her own guardian.

Although parents may nominate guardians to manage the minor's property, guardianship of a minor's property may not be the preferred option. Guardianship of a minor's property terminates when the minor reaches the age of majority, an age at which many parents believe the young adult does not yet have sufficient maturity to manage significant wealth. Creation of a trust is a commonly selected alternative. Under this legal device, which is usually done under the parents' wills, a trustee is named to manage property that would otherwise be placed under guardianship. The responsibilities of the trustee are specified in the will or other trust document. The major advantages of a trust over a guardianship are that court proceedings are avoided, and the parents may designate any age for distribution of the assets to the child.

Guardianship sometimes becomes an issue among divorcing parents. Although custody of children is normally determined by the court granting the divorce, parents or other relatives will sometimes attempt to upset this custody order by moving the child to a different jurisdiction and securing appointment as the child's guardian from a court in the new state. Federal law and international treaties seek to limit the abduction of children to different states or countries and the use of guardianship to facilitate that process.