Guardianship of Minor Children and Incapacitated Adults

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Do you ever stay awake at night wondering who will take care of your children in the unlikely event something happens to you and your spouse?  Life is unpredictable and as parents we are wired to worry about our children.  Establishing a guardianship plan for your minor children is a simple way to prepare for uncertainty and ensure that your children are cared for in the wake of tragedy.

Perhaps you have a child with special needs who will be incapable of living on his own as an adult, or you have noticed that your parents are aging and starting to show signs of memory loss.  Guardians are also needed for incapacitated adults who cannot make decisions on their own.

A guardian’s role is to make decisions that are in the best interests of the minor or incapacitated adult.

It is important to understand the process for establishing guardianship so that you can prepare for the unexpected, unlikely tragedy as well as the natural aging process of family members.

I’ll walk you through the process of appointing a guardian for minors and incapacitated adults so that you are equipped to handle all of life’s surprises.

Guardianship of Minors in a Will

Parents often consider guardianship of their children when drafting their estate plan.  In a will, it is common to nominate an individual or couple to be guardian(s) in the event both parents die prematurely.

I always recommend nominating alternate guardians in case your circumstances change and one party is no longer able to serve as an appointed guardian.  For instance, grandparents are often a parent’s first choice, but they may not be physically capable of caring for children if and when the time arises.  Keep this in mind.

There are certain factors to consider when nominating guardians, such as how well the children know the nominated guardians, and whether the children would need to move out of state, change schools, etc.

The guardian nominated in a will is presumed to be the most appropriate guardian, and the court will appoint them, unless the court deems them to be unfit.  Fitness is determined upon review of the nominee’s current ability to care for children.

That’s where the alternate nominee comes into play.

In the event that no guardian is nominated in a will, using its discretion, the court will appoint a guardian.  The court will take into account the suggestions of those family members close to the children and will make a determination in the children’s best interests.

Guardianship of Minors due to Parental Unfitness

Children may need a court appointed guardian when their parents are still living, but incapable of taking care of them.  For instance, there may be only one parent in the picture and that parent may be recovering from substance abuse or other mental health issues.  In such scenarios, a grandparent or other family member can step forward and seek guardianship appointment.

Petition for Guardianship of a Minor

The proposed guardian has to file a petition for guardianship of a minor with the Probate and Family Court in the county where the child lives.

Notifying the Parents

Next, the parents must be notified (if the father is not identified on a birth certificate or by court order, the proposed guardian will have to publish the notice in a local paper).

Contested Guardianship

If a parent contests guardianship, the court will likely appoint the proposed guardian as a temporary guardian (if it appears that’s in the child’s best interests) and schedule a hearing for permanent guardianship at a later date.

The process is much quicker if both parents consent to permanent guardianship, provided it is in the best interests of the children.

What is the the Best Interest of the Children?

In both contested and uncontested situations, the court determines what is in the best interests of the children on a case-by-case basis, taking into account what will be least disruptive to the child’s life, and whether the parent and child can have a meaningful relationship.

Courts support fostering parent/child relationships, thus favorably weighing the ability of a parent and child to have a positive connection.  Although a person is appointed permanent guardian, he or she can relinquish guardianship to the parent (through a court process), once the parent is healthy and fit to care for dependents.

Guardianship of Incapacitated Adults — Children with Special Needs and Adults with Dementia

At age 18, individuals are legally adults who can make their own medical and financial decisions, regardless of their ability to appropriately do so.

Certain young adults, such as those with special needs or cognitive disabilities, as well as senior citizens suffering from dementia may not be capable of taking care of themselves.  In these instances, a guardian should be appointed for adults who are medically deemed incapacitated.

Anyone can become incapacitated at anytime, so it is helpful to understand the process should something happen in your family.

Medical Determination

The first step to seeking guardianship is getting a medical determination that the person requiring care is unable to make her own decisions.  This can be done one of two ways.

Medical Certificate

The first is obtaining a medical certificate from a licensed physician, which states that person is incapacitated.

The medical certificate is only valid for 30 days from the date of examination, so it is important to file the guardianship petition with the court as soon as it is received.

Clinical Team Report

The second option is to seek a clinical team report, which is a more comprehensive evaluation.

A clinical team report requires evaluations by a licensed physician, psychologist and social worker experienced in evaluating people who are intellectually disabled.  It is valid for 180 days from the date of the first evaluation.  In this instance, it is also best to file the guardianship petition with the court as soon as possible to avoid unnecessary delay.

Petition for Guardianship of an Incapacitated Person

When you have the report or medical certificate, file a petition for guardianship of an incapacitated person in the Probate and Family Court where the person lives.

The Court will appoint an attorney for the incapacitated person.

That attorney’s job is to represent the incapacitated person’s needs. The proposed guardian should communicate with the appointed attorney and you may both have the same request for the Court.

Tips and Reminders about Guardianship

In the context of minors, guardians are only needed when the parents die or become incapable of caring for children.

While these hypothetical scenarios are emotionally painful to consider, it is vital to be prepared by establishing a comprehensive estate plan and educating all interested parties on the process for appointing guardians in the event of incapacitation.

Additionally, it is important for parents to make sure caregivers are authorized to make medical decisions on behalf of their minor children in the event they cannot be reached.

Caregiver Authorization Form

Parents frequently wonder if they need to appoint guardians while they are traveling abroad and their children are left in the care of grandparents or other caregiver.  During this time, it is important for the caregiver to have the authority to consent to medical treatment on behalf of the child, yet guardian appointment is unnecessary.A caregiver authorization form is appropriate for these situations.

If you followed any of the links to the Probate and Family Court instructions contained above, you may have seen that there are many ins and outs to a guardianship appointment.

It’s helpful to hire an attorney to help you navigate this process. Feel free to reach out if you want assistance with the guardianship.  I am always here to help — just use the contact form, below, or call me at 781-499-2016. I hope that having an understanding of common guardianship scenarios and the process for appointment allows you to sleep better at night.



Rebecca Neale

Principal Attorney

As an attorney, Rebecca represents people in divorce, custody, and guardianship proceedings. She also advises people about end-of-life decisions and creates estate plans tailored to their needs and goals. Read more about Rebecca’s Experience here.
Bedford Family Law

Bedford, Massachusetts

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When you reach out to Bedford Family Lawyer for a consultation, we will ask, “What is your goal?” We want to know how we can get you from where you are now to where you want to be, and we will show you the different paths to get there. 

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