When a minor child's parents are unable to care for them, a legal guardianship is necessary. A legal guardian has the same responsibilities and authority to make decisions for the child as a parent. A guardianship may be established by filing a petition in court where the minor child resides and obtaining a court order appointing a guardian for the minor child.
When is a Guardianship Needed?
Parents are legally considered the natural guardians of their children. When a child's parents are no longer able to care for them because of their life circumstances or if they have passed away, a court may appoint a guardian to care for the minor child. Examples of life circumstances that could prompt the need for guardianship include the following:
- Incapacity of one or both parents due to an illness or injury that renders the parent unable to care for the child
- An unstable housing situation
- Financial problems that render parents unable to meet a child's needs
- Incarceration of one or both parents
- Substance abuse by the child's natural parents
- Work or life circumstances that render a parent temporarily unable to care for a child through no fault of their own, such as a deployment
- Any other situation that renders one or both parents unfit to care for a minor child
Temporary vs. Permanent Guardianship
Guardianship may be either temporary or permanent. A permanent guardianship is needed if the natural parents are not expected to be able to care for a child in the near future or if they have passed away.
The advantage of a permanent guardianship is that it offers stability for the child. Guardianship does not terminate a parent's rights, so sometimes a permanent guardianship that allows visitation with a parent is in a child's best interests.
If the circumstances that made the guardianship necessary may change, a temporary guardianship may be more appropriate. For example, if a parent is fit to care for a child in every way except that they do not have suitable housing, guardianship may no longer necessary when the parent has secured stable housing appropriate for the child to with them.
Parents May Consent to a Guardianship
A child's parents may consent to guardianship by signing paperwork stating that they agree to have another person appointed as a guardian for their child. A parent may agree to guardianship in advance by naming a person they want to care for their child if something happens to them in estate planning paperwork. Another common scenario is when parents recognize that it is in their child's best interests to be placed in the care of a guardian.
One advantage of agreeing to guardianship is that a lengthy hearing to determine parental fitness is usually unnecessary. Another advantage of agreeing to guardianship is that a parent may be able to negotiate some of the terms in the final order, such as regular visitation with the child.
Even if a parent signs a consent form stating that they agree to a guardianship, paperwork will still need to be filed at the courthouse where the child resides. A court order is necessary to make the guardianship official.
Choosing a Guardian
Ideally, a guardian should be a relative or close family friend and someone that the child already knows. In many cases, a person who has already been caring for a child on a regular basis, such as a grandparent, will petition a court to become the child's legal guardian. If no suitable guardian is known to the court, a court may select one, but it is usually best for a person who already understands the child's needs to be the guardian.
Notifying Potential Guardians
Many parents name a person that they want to serve as guardian for their child if something happens to them in their estate plan. Failing to notify a potential guardian in advance could be a huge mistake if they are unwilling or unable to accept the appointment. Any person named to be a potential guardian should consent to this responsibility in advance and acknowledge that they understand the child's needs.
What is In Loco Parentis?
In loco parentis is a Latin phrase that means “in the place of a parent.” A person who has always cared for a child and performed the same duties that a parent would when there has not been a formal adoption may be considered standing in loco parentis for the child. This legal status designates the person standing in loco parentis many of the same rights and responsibilities of a parent.
In North Carolina, temporarily placing a child in the care of another person is not enough to establish this relationship. It is only established when a person takes on the duties of a parent, particularly support and maintenance.
Problems with Informal Guardianship Plans
If a parent asks a relative to take over care for their child without that person being appointed as a legal guardian, this would be considered an informal guardianship plan. Informal guardianship plans can present problems when it is time to enroll a child in school or seek medical care.
A legal guardian has the same rights to make decisions that they believe are in a child's best interests as a parent, but if a person who is caring for a child has not been officially appointed the legal guardian, they lack these important rights.
Guardianship comes with court supervision and requires the guardian to make decisions in a child's best interests. Appointing a guardian through this formal process ensures that the guardian is a suitable person to care for a child. Without guardianship, there is no way to hold a person accountable for the decisions they make about a child's care.
Guardianship vs. Power of Attorney
A power of attorney is a form signed by a “principal” such as a parent, that grants another person, the “agent” to make decisions on their behalf. A power of attorney is created when a principal signs forms appointing an agent to manage their healthcare, financial affairs, and make decisions on their behalf. Unlike a guardianship, court intervention is not required.
For minor children, guardianships are almost always preferred because a legal guardian is required to make all decisions regarding care of the child, or "ward" in the ward's best interests and must account for all spending of a ward's assets to a court.