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Guardianship and Conservatorship Law

A guardianship, often referred to as a conservatorship, is a relationship formed by law when an individual or institution as assigned by the court or stated in a will to accept the care of minor children.

To become a guardian of a child either the party intending to be the guardian or another family member, a close friend or a local official responsible for a minor’s welfare will petition the court to appoint the guardian. The guardianship of a minor remains under court supervision until the child reaches majority at 18. The judge does not have to honor the request when someone is named in a will as guardian of one’s child in case of the death of the parent, it is construed as a preference, but is usually honored. The term “guardian” may also refer to someone who is appointed to care for and/or handle the affairs of a person who is incompetent or incapable of administering his/her affairs. Guardians must not benefit at the expense of those they care for (wards), and in many cases are required to make accountings to the court on a periodic basis. In some courts, a guardian may be reimbursed for attorney fees related to the guardianship. Court rules regarding accountings of expenses and requirements of guardians vary and local court rules should be consulted.

In some states, if the child is a certain age or older, the court must appoint the person nominated by the child unless the court finds the nomination contrary to the child’s best interest. The court may not appoint a person against whom the child has filed a written objection. In adult guardianships, the judge is often required to make a reasonable effort to consider the preference of the person with a disability in selecting the guardian. The judge typically does not have to follow the person’s wishes, but must give due consideration to the preference of the person with a disability. Laws vary by jurisdiction, so local laws should be consulted for specific requirements in your area.

A guardianship of a child takes away the parents’ right to make decisions about their child’s life. However, it does not permanently terminate parental rights. This means that although the guardian now has custody and is responsible for raising the child, the parents are still the child’s legal parents.

The court can order a guardian to let the parents visit or contact the child, but the court may also put limits or other conditions on the visitation, such as requiring that any visitation be supervised. The time and frequency of parental visitation is often is up to the guardian (or the court) to decide. Parents may, in some cases, regain custody of their child in the future if the court determines the guardianship is no longer in their child’s best interests.

Local laws vary, but many courts require certain interested parties to be served with notice of guardianship hearings. Such notices often have to be legally served upon the person, with a sworn statement of the person making the service later returned to the court as proof of such service. In some cases, the court may waive the notice requirements. Local court rules should be consulted to determine applicability in your area.