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

For example…

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 about Jodi’s severe injury, 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?

Appointing a legal guardian:

Massachusetts wants care and protection of its minors. 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. The ward may choose a guardian. The guardian 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.

What does a guardian do?

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.

Termination of guardianship:

The role of the guardian may be terminated for several reasons. One such reason is if the minor reaches the age of majority. However, the court may determine that the ward still needs a guardian even after the ward reaches the age of majority. 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.

What about Rebecca and Leon?

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.

Contact us:

Massachusetts wants its children to be cared for and protected by a competent legal guardian. Are you looking for an experienced Newburyport or Andover divorce lawyer or family law attorney? 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.