Guardianships – Two Types


The role of the legal guardian is to care for a child when the parents are unable to.

Guardianship law involving the care over a minor falls under state jurisdiction. Each state has their own rules and procedures that must be followed carefully. In most states, there are two different types of guardianships: Guardianships over the person and Guardianships over the estate.

Guardianship Over The Person

In a guardianship of the person, the guardian has the same responsibilities to care for the child as a parent would. Being a Guardian is a fiduciary responsibility not unlike what transpires during a  conservatorship which usually involves caring for an elder.

That legal guardian assumes full legal and physical custody of the child and can make all legal decisions about the physical care of the child that a parent would make. A guardian can be any interested parties such as relatives, friends and family.

The guardian is responsible for the child’s day-to-day welfare, including:

  • Food, clothing and shelter
  • Safety and protection
  • Physical and emotional growth
  • Medical and dental care
  • Education and any special needs
  • The guardian is also be responsible for supervision of the child and may be liable for any intentional damage the child may cause.

When a child is taken away from a parent because the parent is unable to care for the child a  guardianship of the person is sometimes needed. There is a public policy in favor of keeping the child with the parent or parents so long as the welfare of the child is not threatened. This get complicated when it involves on or both of the parents with each having different roles in parenting. Certain factors are considered and explained below in determining whether a spouse or partner is fit to parent.

Disqualifying Criteria May Include One Or Both Parents:

  • Have a serious physical or mental illness
  • Are in the military and have to go overseas
  • Have to go to a rehab program for a while
  • Are going to jail for a while
  • Have a drug or alcohol abuse problem
  • Have a history of being abusive; or
  • Cannot take care of their child for some other reason…

The court will always base it’s judgment on what is in the best interest of the child to make sure the child is raised in a safe, stable, and loving environment.

Guardianship Of The Estate 

A guardianship of the estate is established to manage a child’s income, money, and/or property until the child turns the age of majority which in most states is eighteen. A child may need a guardian of the estate if he or she inherits money or assets. In most cases, the court appoints the surviving parent to be the guardian of the child’s estate. Should the child be involved in a litigation the court will appoint a guardian ad litem to care for the child’s legal interests durring the course of the litigation.

The Guardian Of The Estate Must:

  • Manage the child’s money
  • Make smart investments
  • Manage the child’s property carefully


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