In some cases, our experienced adoption attorneys advise clients who seek guardianship over another person. Guardianship is available over minor children, as well as over incapacitated adults. In Massachusetts, an incapacitated adult is defined as “someone with a clinically diagnosed condition that leaves them unable to make or communicate decisions affecting their physical health, safety, or self-care.”
As a guardian, you are granted the authority to care for and make decisions over the person over whom you seek guardianship. In addition to guardianship, a related concept is conservatorship, which is also available in cases of minors or incapacitated adults who cannot make or communicate decisions about their money, property, or business affairs. A conservator is appointed by the court to manage the minor or adult person’s estate and finances. In many cases, guardianship and conservatorship are both requested at the same time.
When it comes to minors, parents may also choose to appoint a legal caregiver for their child. This happens where the child is living with someone other than the parents, and the parents want that caregiver to be able to make medical and educational decisions on behalf of the child. A guardian is different from a caregiver. In cases where a caregiver is appointed, that caregiver or the parent can make only educational or medical decisions on the child’s behalf.
A guardian can make all decisions for the child, and if a guardian is appointed, the parent is no longer able to make decisions on the child’s behalf. Being appointed the guardian also means being expected to act in the child’s best interests and to exercise care, diligence, and prudence in taking care of the child.
Petitioning for Guardianship of a Minor Child
In Massachusetts, any person who is interested in the welfare of a child (including another minor) can petition for a guardian to be appointed for the child. Any person who is at least 18 years old, lives in the United States, and has no criminal record of child abuse or neglect may become a guardian.
Guardianship filings begin with a petition, an affidavit of care, and a bond. Other documents may be required to be filed. For example, if the child is over the age of 14, they must file a notarized and verified consent to the nomination of the guardian. And, if the parents of the child agree to the guardianship, they must also file a notarized and verified consent form. If the parents do not consent, the court will essentially need to find the parents unfit in order for the guardianship petition to be approved.
Obtaining Guardianship Through the Court Process
In determining whether to grant the guardianship petition, the court will hold a hearing. The minor child is entitled to have an attorney at this hearing, as are the parents of the minor child. If they cannot afford an attorney, one may be provided to them free of charge.
According to the Massachusetts Trial Courts’ website, the court will use this hearing to determine whether the following matters are met:
- The person seeking appointment is qualified
- The case is in the right court
- The required notices have been given
- The basic conditions for an appointment have been met
- The requested appointment provides for the welfare and best interest of the child
As with any other proceeding dealing with children, the court will first and foremost consider what is in the best interests of the child. If the child is over the age of 14, the child’s choice of a guardian will likely be honored by the court, unless appointing that person as guardian would not be in the best interests of the child.
Once the guardian is appointed, the court issues a decree and order confirming the appointment. In some cases, it is possible for the court to make a temporary appointment, rather than a permanent one. Once you are appointed as guardian, you must file an annual report with the state regarding the child’s well-being.
Contact us for help with your adoption matter
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About the Author: Damian Turco is the Founder and Managing Partner of Turco Legal and has practiced divorce and family law since 2008.
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This article is for informational purposes only and should not be interpreted as legal advice. Articles on our blog are written at a historical point in time and the information presented accurately reflects the law at the time of the article’s writing. If you’d like to better understand how the law applies to your case, schedule an attorney consultation by calling any of our offices or by clicking the Schedule a Consultation link on this page.