How a Guardianship for a Minor Works

We have had many posts related to choosing guardians for your children should something happen to both parents before their children reach the age of majority: Appointing a Guardian for Minor Children, How to Choose A Guardian, among other miscellaneous references to the importance of having an estate plan when you have minor children.

As a review, in a Will, parents can nominate which individual(s) they would like to see as guardian of any minor children they may leave behind. Parents can also name guardians by designation of a standby guardian or by any other writing executed in the same manner as a health care directive. The appointment may specify limitations on the powers to be given to the guardian and is typically only valid for one year from the date the designation is signed.

What has not been discussed as of yet is the actual process that your named guardians would have to go through in order to become a full-fledged guardian and what the duties of the guardian will be once they become guardian of any children you leave behind. This post aims to summarize that process and those duties.

Procedure

In Minnesota, generally, once both parents are deceased, the proposed guardians can file an acceptance of appointment with the probate court. This acceptance must be filed within 30 days following the effective date of the guardian’s appointment (i.e., the death of the last parent of the child). To do this, the guardian should file the acceptance and a copy of the Will (or other nominating document) with the court of the county in which the Will was or could be probated and give written notice of the acceptance of appointment to the minor, if the minor has attained 14 years of age and to any person other having care and custody of the minor. Besides the guardian(s) you named in your Will, any other person interested in the welfare of a minor may petition for appointment to be guardian. After an acceptance of appointment and/or petition is filed, the court will set a date for hearing.

At the hearing, the court will determine if the persons seeking appointment as guardian will serve the best interests of the minor child(ren). Keep in mind, the court shall appoint a person nominated by the minor, if the minor has attained 14 years of age, unless the court finds the appointment will be contrary to the best interest of the minor.

Duties

A guardian of a minor has the powers and responsibilities of a parent, except that a guardian is not legally obligated to provide from the guardian’s own funds for the ward. The guardian must:

• take reasonable care of the child’s personal effects
• report the condition of the child and of the child’s estate which has been subject to the guardian’s possession or control, as ordered by the court on its own motion or on petition of any interested person and as required by court rule

The guardian may:

• receive money payable for the support of the child and must exercise due care to conserve any excess for the child’s future.
• facilitate the child’s education, social, or other activities
• authorize medical or other professional care, treatment, or advice.
• consent to the marriage or adoption of the child.

No guardian may give consent for psychosurgery, electroshock, sterilization, or experimental treatment of any kind unless the procedure is first approved by the order of the court, after a hearing. A guardian of a minor ward may not initiate the commitment of a ward to an institution

Miscellaneous Items

The guardianship continues until terminated, without regard to the location of the guardian or minor child.  A guardianship of a minor terminates upon the minor’s death, adoption, emancipation, attainment of majority (age 18), or as ordered by the court.

A person other than a parent or guardian having custody or care of the minor may prevent or terminate the appointment at any time by filing in the court in which the appointing instrument is filed a written objection and by giving notice of the objection to the guardian and any other persons entitled to notice of the acceptance of the appointment. An objection may be withdrawn, and if withdrawn is of no effect. An objection does not preclude an appointment of the appointee by the court.

Given this summary, it is important to consult an estate planning attorney for answers to all your questions regarding naming guardians for your children.