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What is Probate Guardianship?

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  • Written By: Daphne Mallory
  • Edited By: Melissa Wiley
  • Last Modified Date: 27 November 2016
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    Conjecture Corporation
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Probate guardianship is a proceeding in which a court-appointed adult is authorized by the probate court to care for a child, the child’s property, or both. In many cases, the child is abandoned or the parent dies. The adult appointed by the court is often not the child’s parent, but an individual, company, or agency who is qualified and willing to take custody of the child. The care-giving authority is often referred to as guardianship of the person. When the adult is authorized to care for the child’s personal property, then the authority is called the guardianship of the estate.

Any adult who is appointed as the guardian of the child often has the duties and responsibilities of a parent, such as seeking medical treatment when necessary. Probate guardianship often establishes the biological or adopted parent’s unwillingness or inability to fulfill the parental role. For example, both parents may be arrested and in jail, or a single parent may be addicted to illegal drugs and as a result is incapable of parenting. These circumstances and others often lead to probate guardianship initiated by an interested party, such as a relative. The matter is usually not referred to Family Court because there is no dispute between parents over custody of the child.

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A guardianship of the estate handles the financial management of the child’s property, including income, until the child is deemed an adult under the applicable laws. For example, a child may inherit assets, and probate guardianship is the process in which a court-appointed adult is given the power to manage the assets. In many cases, there is a surviving parent whom the court can appoint as the guardian of estate. It’s often within the court’s discretion to appoint the same adult to act as both the guardian of the estate and the guardian of the person. The court may decide to appoint two different persons based on the facts of the case.

Filing for probate guardianship often consists of filing paperwork with the probate court and requesting a hearing. If the person filing for guardianship is concerned that the child will be harmed if proceedings are delayed or that the child is in danger of losing property, then the person can ask for emergency proceedings. This is usually referred to as temporary guardianship, and it requires that a probate court conduct hearings as soon as possible. Many jurisdictions require that the closest relatives be notified about any court hearings on probate guardianship, and the requirement for notification is often that copies of the paperwork be mailed or delivered to those relatives.

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