Guardianship is a legal process allowing one individual to have authority over another. The guardian is legally responsible for being the caretaker of that protected person. The decisions can be financial, medical, and personal. If you are appointed as a guardian, it is crucial to understand how this role will impact your life.
A guardian oversees the responsibilities of ensuring physical, mental, and emotional security for the child. Furthermore, they must ensure that the child receives basic needs such as food, shelter, education, and medical and dental needs. Raising children is not an easy endeavor; therefore, understanding how to reach out to find resources will help you establish a healthy relationship with the child.
However, the parents do have the legal option to terminate the guardianship. There is a process to file for termination of the guardianship, and a notice is sent to the guardian. Once it is filed with the court, the judge can decide.
But, if there is an objection to the termination, the case is transferred to the juvenile court. The court will provide both sides with notice and hold a hearing. The court must evaluate if the guardianship is still in the child’s best interests.
What Will the Court Consider When Deciding Who Receives Guardianship of a Minor?
The judge must decide who will serve as the permanent guardian for the child and who best serves their interests. The court will consider the following factors:
- If there is an adult that the minor prefers if the minor is 14 years or older;
- The closest adult relative of the child;
- Other adult relatives in the family of the child;
- Other adults who are related to the minor by marriage;
- An adult who was appointed in writing by either of the minor’s natural guardians and;
- An adult who has provided care or support for the child or with whom the child has resided.
But keep in mind the court still has the discretion to determine who will be assigned as the guardian to serve the child. The judge will surely consider the minor’s preferences, but if they deem they would not suit their best interests, they will decide otherwise. The court will evaluate all the situations and facts surrounding the case to make the judgment.
How to Obtain Letters of Guardianship?
You must first receive the qualification or the approval to be assigned as a guardian from the court. There is a legal process to apply for guardianship, and you must meet all the requirements.
The following must be submitted to qualify for guardianship:
- A signed Acceptance of Guardianship from the county surrogate;
- Acknowledge receipt of guardianship training guide(s);
- Acknowledge completion of guardian background screening as needed in the case;
- You must post a surety bond if ordered by the judge and;
- The Letters of Guardianship are issued after you qualify. These letters provide you the authority to act as a guardian. Remember to keep the letters in your records and do not distribute them.
To elaborate more on proving that you are a legal guardian, purchase short certificates or obtain a surety bond. The bond prevents any misuse of the assets by the guardian. Guardians will be legally responsible for any unauthorized use of funds. Furthermore, another type of guardianship is of the estate. In these cases, the guardian can be compensated for their services. They can be compensated with any income.
Additionally, guardians can request the court to cover the following:
- Out-of-pocket costs needed for the guardianship;
- Court fees and other mandatory fees;
- Attorney fees and;
- Payments for any professional services used.
Although there is much permitted in terms of how to compensate a guardian, there are still some restrictions in some situations. For instance, guardians cannot receive fees or other payments from the person under guardianship unless ordered by the court. They also cannot receive gifts from the person under guardianship without court permission. Guardians must seek authorization from the court to give any gifts under guardianship.
Moreover, maintaining a detailed financial history will be useful throughout the guardianship. This helps find financial transactions and keep records for court reports. The judge may require proof of purchases; therefore, keeping a record is highly recommended. It is important to note that the friends and family of the person under guardianship have the legal right to inquire or check up on the guardianship.
One of the reasons they may want to look into guardianship is to determine whether or not they are being treated justly and whether or not they are financially being abused. The guardian must demonstrate that they are indeed abiding by the law. You can be allowed to file a guardianship motion if you wish to:
- Change guardianship protection;
- Alter reporting requirements;
- Evaluate a guardian’s conduct and;
- Review a guardianship.
Can You Modify a Guardianship?
The North Carolina Courts share how guardianship can be changed for valid reasons. Any person can file a motion to modify guardianship, including a motion to remove a guardian. Then the clerk will hold a hearing on the motion and determine whether or not the changes need to be made to serve the protected person’s best interests.
A valid reason for modifying could be negligence, abuse, mismanagement, financial fraud, etc. You can look to your local state for more valid reasons to terminate the guardianship.
A guardian may file a motion to modify, seeking to resign as guardian, and the court can assign a new guardian. A party is permitted to modify the guardian’s duties and can request a transfer of guardianship. For instance, if the ward relocates, they can seek to have the court transfer the guardianship to a county they reside in.
Furthermore, you can transfer guardianship due to medical needs or treatment. You can request to transfer the guardianship to another state as needed. Depending on the county you live in, there may be different timelines and procedures for this. Therefore, check your local county rules and regulations on how to modify guardianship.
States have local county websites with forms and other documents to file the necessary motions to the court. Most states allow guardianship transfers, but there may be a time frame for this or a waiting period. It is possible to anticipate this rather than be disappointed later in your application process.
For example, to transfer guardianship from another state to North Carolina, you must first request a provisional order of transfer from the other state. Once you have that order, you can petition North Carolina to accept the transfer of guardianship using the relevant form.
When Do I Need to Contact a Lawyer?
As mentioned earlier, guardianship comes with heavy financial, mental, and physical responsibilities. It is important to seek a local guardianship lawyer to assist you in finding legal options. Check your local county’s rules and see their procedures for qualifying for guardianship. A lawyer can provide you with guidance and information if you have questions about the procedures.
Guardianship can be a complex subject, but an experienced lawyer in your area will be able to inform you of your rights and options under the laws of your state. They can also represent you in court if any legal disputes arise.
