An important responsibility of the probate courts is the guardianship of minor (under the age of majority) beneficiaries and inheritors of estates under a decedent’s (legal term for deceased) will. The minors cannot administer the estates until they reach the age of majority, so the responsibility falls to the guardian. In the cases when the decedent dies intestate (without a will), the court can appoint a guardian they find fit to take care of the minor (or minors).
Under What Law Are Minors Protected?
The laws vary per state in the probate courts, so this section will only look at the Uniform Guardianship and Protective Proceedings Act of 1998. It is one of the Uniform Laws, recommended for approval by all states, and is considered part of the Uniform Probate Code when a state probate court is using the Code for administration of an estate.
The law provides for the guardianship of minors, or unemancipated children under the age of 18. The guardian can only be appointed by the parent or by the court. The responsibility of the court is heavy, since the guardian also holds the funds provided for care of the minor. A wrong choice could be disastrous for all involved.
Rights of the Minor
A minor over 14 years of age is allowed to petition the court for appointment of a guardian even after a parent has appointed one. The parental appointee is prioritized, but the court may take the minor’s requested guardian instead.
If the minor is over 14 years of age, he or she can also file an objection to the guardian placed over him or her. If the guardian is appointed by the minor’s parent, the probate court may allow the appointment may stand despite the objection. If the court is willing to accommodate the objection, a temporary guardian may be appointed.
Duties of the Guardian
The guardian must know how the minor is doing generally, as least enough to know when there is a change in his or her needs or health. The guardian is also in charge of handling the financial support provided for the minor’s education, health, shelter, and other basic needs. Any extra finances left over per month should be returned to the estate. The guardian should also make regular reports on the minor’s condition, and keep the court informed if the minor changes residence for any reason whatsoever.
At the same time, the powers of the guardian stand in place of what the parents’ would have been. The guardian is authorized to sign consent for certain forms of medical treatment and other forms of rehabilitation and care, sign consent for marriage (if the guardianship extends past age of majority), and in some cases, sign consent for adoption. The probate must take these duties and powers into account when considering who to give a child’s guardianship to.
Probate Courts and the Protection of Minors
On paper, the responsibilities of the probate courts look straightforward. Even the appointment of executors and administrators for a decedent’s estate can be messy but simplified, because most of the people involved are over the age of majority. In the case of children, however, the state is responsible not for property but for persons. This is probably the most difficult responsibility that faces probate courts.