How to Be a Legal Guardian

When parents prepare their estate plans, one of the most important questions is who will care for their minor child if they are no longer able to. This person will become the legal guardian for that child, should something happen to the child’s parents.

Agreeing to be a legal guardian of a minor is a serious undertaking that should not be entered into lightly. Although we hope it won’t be necessary, sometimes legal guardians do need to take custody of their friends’ or loved ones’ child. 

Here’s what you should know about being a legal guardian.

Legal Guardianship Duties and Responsibilities

Under Arizona law, legal guardians have specific duties and responsibilities. Generally, guardians have the legal authority to make everyday decisions for the child in their custody, such as:

• Bedtimes,
• Meal schedules,
• What entertainment is, and isn’t permitted, 
• Medical decisions, and
• Other general day-to-day decisions.

The legal guardian is responsible for ensuring that the child has food, shelter, and clothing, as well as ensuring the child attends school. Guardians must provide a status report each year to the court, discussing the health and wellbeing of the child.

Guardians are not financially responsible for the minor child in their care – it is the responsibility of the parents to provide these financial resources. Parents often create trusts to ensure their children have financial resources available to them, which may be administered by a separate trustee. In the rare instance, there may also be a court-appointed conservator to manage the minor’s financial matters.

Guardianship of a minor is an important role to take on – before you agree, you should consider the lifestyle as well as the emotional toll it may take on you. You are the primary caretaker of another human being. This role comes naturally to some people, but not everyone. 

Before agreeing to take on the guardianship of a child, it’s important to take a look at your living situation and lifestyle. Do you travel often for work or pleasure? Do you have a regular schedule that would provide stability for the child? Will your age prevent you from providing proper care while the child is growing up? If you are already a parent, do you have room in your home to take in another? There’s no shame in telling the child’s parents that you do not have the capacity to take on this responsibility. It’s better they know now than when there is an emergency.

How to Become a Legal Guardian

There are two ways to become a legal guardian: by nomination or by appointment.

Nominating a Guardian

The first way is the easiest – the parents of the minor child will actually name at least one guardian in their last will and testament. Both parents must agree to the guardian. I recommend having at least one successor guardian named, in case the original guardian is unable to take on the task if the time comes. Often, people select their family members, such as siblings, to take on this role, but there is no requirement that the proposed guardian be a blood relation.

The probate court will review the last will and testament nominating the proposed guardian. The court will hold a guardianship hearing to ensure that this person will act in the best interests of the child. The guardian will be responsible for reporting on the child’s welfare to the court on an annual basis.

Appointing a Guardian

If parents do not specifically name a guardian, the court will need to appoint one. In this situation, family members or close friends of the family may request to take on these responsibilities by filing a guardianship petition with the probate court.

This petition will need to show that appointment of that specific proposed guardian is in the best interest of the child. The judge will hold a hearing to consider the proposed guardian’s ability to take on child custody responsibilities, as well as what will be least disruptive to the child and his or her education. If the child is already living with someone, this arrangement will be taken into consideration. If the child is at least 14 years old and able to make an intelligent decision, the court will take the child’s opinion into consideration when making decisions regarding guardianship.

Family members, such as siblings or grandparents, may request permission to take on the role of legal guardian. However, in the case of elderly relatives, probate courts are rightfully concerned with their ability to care for young children when the proposed caregiver may be facing health concerns due to age.

This article does not provide legal advice, nor does it form an attorney-client relationship. If you have questions about how to be a legal guardian, the process of appointing a guardian, or other estate planning questions, please contact me today.