Guardianship of a Minor

Under what circumstances is there an issue with becoming a guardian of a minor under Massachusetts family law?

Consider the following scenario: Ten-year old Rebecca and her seven-year old brother Leon live with their mother, Jodi. Rebecca and Leon were always close to their father. Unfortunately, their father recently passed away from a long-term medical condition. One evening, Jodi, a nurse, was driving home from a long shift when suddenly a driver speeding in the wrong direction hit her vehicle. After the crash, Jodi was immediately transported to the hospital and has been admitted since the accident. The physicians are unsure whether she will emerge from her dire medical condition.

On the night of the accident, the friendly neighbor watching Rebecca and Leon became concerned when Jodi did not return from her shift. The neighbor brought Rebecca and Leon to school the following day. Upon learning that Jodi had been severely injured, the neighbor informed the children’s school of Jodi’s condition. Knowing that the children have no other relatives except for an aunt studying in India, the neighbor wants to know more about the children. Who will take care of them? Who will protect them? What will happen to them if Jodi does not leave the hospital or leaves but is unable to care for them?

Massachusetts wants its minors to be cared for and protected. The courts recognize that there may be instances where a parent cannot make decisions on behalf of his or her children. In these circumstances, Massachusetts courts may appoint a legal guardian to make decisions on behalf of another person, known as a ward. A ward is unable to make the necessary legal decisions that a guardian or adult is capable of making on behalf of a child or ward.

As with custody decisions, the best interests of the child are paramount. Courts want guardians who consider the best interests of the minor in mind. Guardians may be chosen by the ward. They may be a relative. Guardians may also be someone familiar with the ward. A guardian may be a wise alternative to an adoption, especially if a parent is alive but is unable to care for the minor.

Guardians of minors take care of the well-being of the minor. They may provide a residence for the child to attend school. Guardians may make other legal decisions on behalf of the minor. In the aforementioned example, the neighbor may make a good choice for a guardian, especially because the neighbor would minimize any disruption to the children’s school life. The children could continue to attend the same school and live in the same neighborhood or even within their house, provided that the guardian ensures for their protection.

Guardians are not required to pay for all of the children’s needs from the guardian’s personal funds. Rather, the guardian may receive money due to the care and support of the children. The guardian must maintain a proper accounting of funds that are used for the children. Any excess funds must be used to support the minor. The guardian must care for the minor’s property. Additionally, the guardian must ensure that minors are educated. If a minor has health needs, the guardian must provide for the health of the minor.

The role of the guardian may be terminated for several reasons. One such reason is if the minor reaches the age of majority. The court could determine that the ward still needs a guardian even after the age of majority is reached by the ward. Also, the guardianship may end if the ward marries. Further, the guardianship may end if the guardian did not properly perform his or her duties as a guardian to the ward.

In the example discussed above, the neighbor could petition to be a guardian for the children. The wishes of each child will be considered in any decision to make the neighbor a guardian. To become a guardian, the neighbor could seek an attorney who could file a petition for appointment of guardianship. During a hearing, the court will want to know about the assets of each child, if any exist. If Jodi has any capacity, she could consent to the guardianship appointment. If she does not, the decision could be made without her consent. The guardianship does not terminate Jodi’s parental rights.

Massachusetts wants its children to be cared for and protected by a competent legal guardian. If you have any questions about divorce, family law, child law, guardianships, or more, please contact our skilled and experienced attorneys. You may schedule a free consultation with a knowledgeable family law lawyer today. Call our offices at 978-225-9030 during business hours or complete a contact form online. Do not hesitate to call our offices today.


Best Practices for Working with a Guardian ad Litem

In some cases, a Guardian ad Litem’s services are a key component.

Imagine the following scenario: a ten-year old child named Jacob is diagnosed with a “curable” form of cancer. If Jacob is brought to a hospital for regular chemotherapy treatments, then Jacob has a chance to beat the disease and live a healthy and stable life. Jacob’s parents, however, are devoutly religious people with the deeply held belief that God and prayer are the only acceptable ways for their child to be cured of cancer. The parents believe that if Jacob is meant to be cured, then God will provide for the cure. As such, Jacob’s parents are refusing any medical treatment for Jacob.

This scenario might trigger a court case, one in which the state of Massachusetts has a special interest in advocating on behalf of Jacob to ensure that he has a chance to beat his disease, even against the wishes of his religious parents.

If a Justice of the Massachusetts Probate and Family Court appoints a Guardian ad Litem to the case involving Jacob, the Guardian must be impartial. He or she investigates or evaluates the family and has a duty to investigate the family’s situation. This investigation may include interviews with Jacob and his parents and home visits. After reviewing the family circumstances, the Guardian ad Litem creates a detailed report to file with the court. The person does not take sides and is supposed to be an impartial third party.

When working with a Guardian ad Litem, it is important to remember certain best practices. First, it is necessary to know that the Guardian ad Litem is not your attorney, and anything that you share with him or her may be reported to the Justice in your case. The person does not need to keep any confidential information that you may believe you are sharing in confidence.

Second, it is also important to remember that you must provide the Guardian ad Litem with accurate information and to share with the Guardian ad Litem any information about other people who may have information in support of your case.

Third, it is important to remember that depending on the circumstances of your case, the investigation or evaluation process with a Guardian ad Litem may take several months. Because the process may be long, it is wise to keep written documentation about what you want to share with the person; what you have shared with the person; when and for how long you spoke with the Guardian ad Litem; and any other information that you think would benefit your case. When you speak with the Guardian ad Litem, you should create a summary or bulleted list of important points that you wish to share, so that you stay focused with your thoughts.

Another item to consider is that there may be a cost associated with the Guardian ad Litem process, which you may be required to pay. Also remember: because the Guardian ad Litem is an impartial person, he or she may seem distant or highly questioning of you. This does not mean that he or she does not believe you or what you’re saying, but rather, it means that he or she is performing his or her due diligence in remaining impartial for the report to be given to the Family Court Justice.

Encourage those with whom you know the Guardian ad Litem will be speak to remain truthful. Provide factual information requested by the Guardian ad Litem, but be sure to speak with your attorney and not the Guardian ad Litem about facts that may or may not hurt your case. If the Guardian ad Litem requests that you sign consent forms to obtain confidential information from professionals, be sure to speak with your attorney before you sign any documentation. After the report is created, you have a right to read the final report. You may not copy the report without permission from the Massachusetts Family Court Judge.

In the above case with Jacob, the Guardian ad Litem will present the facts of the family situation, but the Guardian ad Litem is not a legal advocate of Jacob. Although Massachusetts values religious freedom, this freedom is not limitless when the care of a child with a curable form of cancer is concerned. There are other circumstances when a Guardian ad Litem may be involved such as a divorce, separation, or other matters that affect children or the family unit.

If you are seeking a competent family law or child law lawyer or domestic relations attorney, please contact our offices by phone at 978-225-9030 during business hours or complete a contact form on our website. We will respond to your phone call or submission promptly, and you may schedule a free consultation with us.

Right to a Lawyer for Indigent Guardians

Is an indigent guardian or de facto parent whose guardianship of a child is subject to removal entitled to legal counsel? This was the issue addressed in a recent decision of the Massachusetts Supreme Judicial Court.

Guardianship of K.N. addressed the case of a child, born to a 15-year-old mother, whose maternal grandmother was granted guardianship of the child. Ten years later, the mother of the child filed a petition for removal of the child from the grandmother’s care. The mother also filed an emergency motion to return the child to her, which was granted. The grandmother filed a motion the following day, seeking the appointment of counsel; that motion was denied.

The grandmother filed a motion to reconsider, having retained counsel, but her motion was dismissed due to a procedural error, and her counsel then withdrew. The child eventually appealed, through counsel, claiming that the guardian’s procedural due process rights required that she be allowed to have counsel appointed in order to represent her interests. Alternatively, the child argued, the equitable powers which reside with the Probate and Family Court allowed the Court to appoint counsel for the guardian.

“We conclude that guardians who have established a de facto parent relationship with their wards do not have a liberty interest in that relationship such that they have a procedural due process right to counsel,” the Court noted. “We hold, however, that the equitable powers of the Probate and Family Court allow a judge of that court to grant a motion requesting counsel for a guardian in a removal proceeding where the judge, in his or her sound discretion, concludes that doing so would materially assist in determining the best interests of the child.” As with all issues involving the custody of children, the best interests of the child will be the governing factor here.

If you have any questions about domestic relations issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and one of our experienced family law attorneys will get back to you at our earliest opportunity.

[1] Guardianship of K.N., 476 Mass. 762 (2017).

[2] Id., at 762.