Guardianship of a Minor

Guardianship of a MinorGuardianship of a minor (under 18) is a legal option that differs in many respects from guardianship of an adult disabled adult child who has turned 18 or guardianship of a person incapacitated by disability or dementia.  Judges will want to insure that the impact and effect of a guardianship of the minor on parental rights are considered along with the suitability of other alternatives.

            A minor (under 18) is “legally incapacitated” only because they are not yet adults and can’t make legally binding decisions for themselves. Except for the privilege to drive, minors do not have the rights adults have.  Normally, parents have decision making authority over their minor children and, if there is a dissolution of marriage, decision-making is allocated between the parents in the parenting plan.

If a child is residing with someone other than their parents, guardianship of a minor can be an appropriate option.  Courts will not grant guardianships over minors where a child is residing with their parents.

Guardianship of a minor can be problematic where the guardians authority conflicts with parental rights.  Parental rights are “big” rights which is to say rights of constitutional proportions. They cannot be subjugated to a guardian’s authority—absent due process and getting over significant legal hurdles.

Guardianship of a minor remains, however, a valid statutory option in Washington. RCW 11.88.010 (d) authorizes the superior court to appoint guardians for minors.

   (d) A person may also be determined incapacitated if he or she is under the age of majority as defined in RCW 26.28.010.

Petitions for guardianship of a minor can be filed by non-parents, usually relatives such as aunts, uncles or grandparents. In contrast to an adoption of a child, no home study is required, however, a guardian ad litem investigation is required.

A non-parent can petition to be appointed guardian for a minor because of a parent’s illness or death or when a parent is in prison. Occasionally, petitions for guardianship of a minor have been filed when the parent cannot control or adequately parent a child and where the parent agrees that someone else should make decisions about the child.  Guardianship of a minor can be helpful when someone is caring for a child, the parents agree, and the non-parent needs authority to make medical decisions over a minor on their health care insurance.

If appointed by the court, a guardian steps in to make financial, medical, and personal care decisions for the child.  Appointment of a guardian does not terminate the rights of parents.  If a parent is deceased or if their rights have been terminated in a dependency or in an adoption, the relationship between a guardian’s powers and parental rights is not a concern.

Occasionally, for example, parental rights are terminated in a dependency proceeding in Juvenile Court.  In these cases, a dependency guardianship may be available.

Guardianships of minors are useful because guardianship is a widely recognized term, recognized by agencies, by states and by international governments as granting formal authority with children.  The term guardianship is recognized by representatives of institutions that deal with children such as health care insurance companies, health care treatment providers, schools, airlines, athletic programs, border control and immigration authorities to name a few. The court order appointing a guardian and letters of guardianship provide evidence of authority of the guardian to medical professionals, schools and other institutions because guardianship is a familiar legal term and serves as a utilitarian “badge of authority” for the guardian.

Guardian ad Litem, Investigation

As in any investigation into a guardianship, the guardian ad litem is appointed to report to the court. The guardian ad litem considers alternatives to guardianship in their investigation and report.   Minors do not have contractual capacity to execute powers of attorney, trusts or other “alternatives to guardianship”, but there are other alternatives to Guardianship of a Minor such as:

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