Probate Guardianship Law and Legal Definition

Probate Guardianship refers to a court appointed adult who is not the child’s parent to take care of the child or the child’s property. There are two types of probate guardianship: Probate guardianship of the person and Probate guardianship of the estate.

Usually probate guardianship of a person is set up by the court to give the adult living with the child the legal authority to make decisions on behalf of the child. The guardian has the care, custody, and control of the child and will be responsible for providing for food, clothing, shelter, education, and all the medical and dental needs of the child. The guardian should also provide for the safety, protection, and physical and emotional growth of the child.

The guardian will have full legal and physical custody of the child and are responsible for all decisions relating to the child. While there is guardianship the child's parents cannot make decisions for the child. The parents' rights are suspended as long as a guardian is appointed for a minor. A guardian, like a parent, is liable for the harm and damages caused by the willful misconduct of a child.

The court can place other conditions on the guardianship or additional duties as guardian. For example, the court may require the guardian to complete counseling or parenting classes, to obtain specific services for the child, or to follow a scheduled visitation plan between the child and the child's parents or relatives. The guardian should follow all court orders.

A guardianship of the person automatically ends when the child reaches the age of 18, is adopted, marries, is emancipated by court order, enters into active military duty, or dies. If none of these events has occurred, the child, a parent, or the guardian may petition the court for termination of guardianship. But it must be shown that the guardianship is no longer necessary or that termination of the guardianship is in the child's best interest.

A guardian of the estate manages a child’s income, money, or other property until the child turns 18. The guardian of the estate is required to manage the child's funds, collect and make an inventory of the assets, keep accurate financial records, and regularly file financial accountings with the court. A child may need a Guardian of the Estate if s/he inherits money or assets. In most cases, the Court appoints the surviving parent to be the Guardian of the child’s Estate.

In some states, depending on the amount and character of the child's property, the guardian may elect or the court may require that estate assets be placed in a blocked account. A blocked account is one from which funds cannot be withdrawn without the court’s permission.

A guardian may be removed for specific reasons or when it is in the child's best interest. It can be by the court’s own motion or by a petition filed by the child, a relative of the child, or any other interested person. If necessary, the court may appoint a successor guardian, or the court may return the child to a parent if that is found to be in the child's best interest.

In some cases the same person can be the Guardian of the Person and of the Estate. In other cases, the Court will appoint two different people.