Who can petition for a guardian to be appointed? Prospective guardians themselves can ask a court to serve a child’s best interests by appointing one, but even a minor can request that someone be appointed as a guardian. That means anyone at all who is concerned about a child’s well-being can petition the probate and family court for a legal guardian to be appointed.
Guardianship is typically requested if parents:
- Are dead or incapacitated
- Agree to having a guardian appointed
- Are deemed unfit by the court
- Have lost their parental rights
In order to be considered as a guardian, a person has to be:
- An adult, 18 years or older
- A United States resident
- Free of any criminal record involving child neglect or abuse
If the minor in question is more than 14 years of age, then the child can choose their guardian, as long as their choice would not be deemed as detrimental to the child’s best interests by the court.
Temporary guardians are appointed for no more than 90 days, while a permanent guardian can be appointed until the child is no longer a minor, once the child turns 18 years old.
How Quickly Can You Get Guardianship?
In Massachusetts, guardianship of a minor can be a complex process depending on the circumstances involved. If parents had named a guardian in a will, then the guardian simply needs to file with a court within 30 days of the parents’ deaths before they are officially appointed as legal guardian. In other cases, which could involve birth parents, the Massachusetts Department of Children & Families (DCF), and other parties, it could take months.
What Does a Legal Guardian Do?
A guardian has the same responsibilities whether they are appointed temporarily or permanently.
In Massachusetts, a legal guardian can:
- Have physical custody of the child (the child lives with them)
- See to the child’s education, pick the school, talk with teachers, etc.
- Monitor and provide for the child’s physical and mental health needs
- Save money for the child’s future needs
- Care for the child’s belongings
A guardian has no financial control if a child has assets, such as a trust fund; a conservator would have this power if needed. Short of that, a guardian essentially raises the child.
What Is the Difference Between a Caregiver & a Guardian?
If a child is living with someone who isn’t one of their parents, naming that person a caregiver gives them the authority to make medical choices and give educational direction for the child. Being named a caregiver is something that lasts for two years or less, and the same process isn’t required for this as is required for naming a guardian. A guardian has the authority to make all choices for a child: medical, educational, etc.
When a caregiver is named for the child, the caregiver and both parents can make choices on behalf of the child. When a guardian is appointed, only the guardian can make those choices. Not even the parents have a say once guardianship is established. Parents can contest the guardianship, but if the court deems those parents unfit, then the guardian retains this decision-making ability.
What Is the Difference Between Adoption & Guardianship?
While both adoption and guardianship involve being granted parental responsibilities, guardianship lasts until a child turns 18, or sooner if the guardian petitions for the guardianship to end, or if the court decides to terminate the guardianship on its own. Adoption, on the other hand, is for life.
Another distinction is that in adoption, if the child is at least 12 years of age, then they must agree on the adoption for the process to move forward. In guardianships, the child is at least 14, then their agreement is necessary before the guardian can be appointed.
Visitation rights from birth parents are another difference. With guardianship, there are any number of visitation agreements that the court could deem acceptable for the birth parents and their child. With adoptions, an open adoption agreement might include visitation arrangements with the birth parent, but outside of adoptive parents including this in the adoption agreement, courts cannot enforce visitation or contact rights for a birth parent.
Some other differences between being an adoptive parent and a legal guardian include:
- Adoptive parents can submit a motion to change a child’s name and birth certificate. A guardian can change a name if birth parents and the court don’t object, but the birth certificate will remain unchanged.
- A guardian has authority to make medical decisions for a child but may have to ask the court to decide on major medical treatments. Adoptive parents have no limitation in consenting to medical treatments for a child.
- Adoptive parents can relocate out of state without having to petition the court first, whereas a guardian would have to secure permission from the court before moving out of Massachusetts.
- If a guardian dies, custody reverts to whoever had custody of the child before the guardian was appointed. When one adoptive parent dies, the other still retains custody. If there is just one adoptive parent, or both adoptive parents die, they can name a guardian ahead of time in their will.
Find Out What’s in a Child’s Best Interests in Your Case
If you are one of the interested parties in guardianship proceedings or are considering requesting guardianship for a minor, it’s in your best interest to speak with an experienced Massachusetts guardianship lawyer as soon as possible. When you reach out to Miller Law Group, P.C., you can reach an entire team of family lawyers who know the local courts and can discuss with you the nuances of caregiver, guardian, and other child custody processes.
Call (888) 874-2142 today request a free consultation to learn more about guardianship of minors in Massachusetts.