Grandparenting

Guardianship

Guardianship is a formal legal arrangement granted by a court that gives another person the legal rights to act on behalf of a child whose parents are dead or missing, or otherwise not able to care for the child.

What is guardianship?
Guardianship is a legal relationship between you and your grandchild granted by a court of law. In order to obtain guardianship you must go to court and prove that the parents are dead or otherwise not able to care for your grandchild. If you succeed, you will receive "letters of guardianship." This means that the court has approved your request and that you now have the legal right to make decisions on behalf of your grandchild.

In New York State, guardianship consists of different arrangements:

  • Guardianship of the person allows the guardian to make all daily decisions concerning the child, such as: where the child will live, goes to school, or obtains medical care
  • Guardianship of the property allows the guardian to make decisions about the child's property (if the child has property, for example, a home or has funds as a result of a settlement) and other financial decisions

Guardianship of the person and property. A court may give the guardian the authority to make decisions over the child's personal needs and financial affairs.

Are guardianship and legal custody the same?
Generally speaking they are very similar because they are both ordered by a court and they both give the caregiver the legal right to make decisions for the child. However, there are some differences:

Guardians usually have the authority to:

  • make medical decisions on behalf of the child
  • designate a standby guardian who can take care of the child in the event the guardian is not able to
  • add a grandchild to the guardian's medical insurance plans

Caregivers with Legal Custody may have more limited authority. They:

  • may not always be able to make medical decisions for the child
  • they usually cannot add the child to their medical insurance plans

Who can be the guardian of a child?
Any person may ask the court to be appointed guardian of a child under age 18. The guardian does not have to be related to the child.

What are some of the benefits of guardianship?
Once you are your grandchild's guardian:

  • the parent of the child cannot take your grandchild away from you unless a court, after a hearing, ends your guardianship
  • you will be able to decide where the child will live, and make decisions about your grandchild's medical care and education, without interference from the parents
  • the parents are still legally responsible for the financial support of the child (however, they may be allowed to visit them if they request visitation and the court orders it)

Is guardianship permanent?
No, the rights and obligations of a Guardian end when:

  • the child reaches the age of 18
  • the child who is less than 18 years old gets married (guardianship over the child's property does not end after the marriage of a child under the age of 18)
  • the child's parent asks the court to end the guardianship and the court agrees to end your rights as guardian
  • whenever the court orders the guardianship to end

How do I become a guardian?
Any person can go to court to ask to be appointed the guardian of a child under 18 years of age. The parents must be notified whenever someone asks the court to be appointed guardian over their child. If the child is over the age of 14, the child can also ask the court to appoint or choose a guardian and the child may voice his or her consent to the guardian who is chosen. The court will ask his or her preference for a guardian, and the court may consider the child's preference. Parents may also consent or agree to allow a grandparent to be the child's guardian.

As in legal custody cases, grandparents seeking to become their grandchild's guardian must first prove that there are extraordinary circumstances that make it necessary for the child to be placed in their care. If the grandparent can show extraordinary circumstances, the judge will decide who shall be the child's guardian. In making that decision, the court will find out whether the person requesting guardianship has had a report of abuse or maltreatment of a child made against them and the outcome of that allegation. The court will use that information in making its decision.

If the court chooses you as your grandchild's guardian, you will receive "letters of guardianship" which will give you the legal right to make decisions on behalf of your grandchild.

Do the rights of the parents end if I become the guardian?
No. Unlike in an adoption, the rights of the parents do not end if you become the guardian of your grandchild. The parents are still responsible for the financial support of your grandchild and may be ordered to pay child support. The parents cannot take the child away from your home without first going to court, but, if the court orders it, they may be allowed to visit their child.

What are some of the reasons grandparents would ask the court to be appointed a grandchild's guardian?
Grandparents may want to consider whether to ask the court to be appointed guardian of their grandchild if:

  • the parents of the grandchildren are dead or missing and someone needs to have the authority to make major decisions for the child
  • the child's parents are abusing the grandchildren
  • the child's parents are in jail, or addicted to drugs, or are otherwise not able to care for the children
  • the grandparents are having trouble getting necessary medical care for the child and they do not know where the child's parents are
  • the child has funds from an inheritance or as a result of a lawsuit or settlement, or owns property, and an adult is needed to make decisions about the child's financial affairs

What does the court consider when deciding to grant guardianship to a grandparent?
The court will look at the circumstances of the case, decide whether the parents are able to adequately take care of the child and, IF NOT, then decide who [is to] WILL be appointed the guardian of the child based on the best interests of the child. In addition, the court will want to know the following:

  • where the child's parents are
  • why the parents are not able to care for the child (remember, parents are the natural guardians of their children unless the court finds that they are not fit to be guardians or are not able to care for their children)
  • who the child is living with

Can the parent go to court and ask that the guardianship end?
Yes. A parent can go to court at any time and ask that your guardianship end. The court will decide whether your guardianship should end or continue after a court hearing.

As my grandchild's guardian, must I pay for my grandchild's support?
No. A grandparent who is the child's guardian is not financially responsible for the grandchild's support. The parents remain responsible for the financial support of their children. However, you can apply for public benefits on behalf of your grandchild, like Family Assistance and Medicaid. If the child is eligible for these programs you can obtain income and health care coverage for the child.

What are my rights and responsibilities as my grandchild's guardian?
If the court appoints you as your grandchild's guardian of the person, you are responsible for the care of your grandchild as if you were the child's parent. You can make all decisions regarding your grandchild including decisions about your grandchild's medical needs, education and where you and the child will live. However, you will need to ask permission of the court to move to another county or out of the country.

If you are appointed by the court as the guardian of the child's property, you are also responsible for that property and cannot waste, sell or destroy the child's property, without being held responsible for the damage or waste. You will also be required to report yearly what has been done with the child's property and/or funds.

Can a guardian consent to necessary medical care for a grandchild?
Yes. A grandparent who is the guardian of her grandchild can consent to necessary medical treatment on behalf of the grandchild.

As the guardian of my grandchild, can I designate someone to take care of my grandchild in my will?
No. Only the birthparents of a child or the child's adoptive parent can designate a guardian in their will to take care of their grandchild. Such guardians are called "testamentary guardians".

As the guardian can I designate someone to be the guardian of my grandchild if I become ill or if I die?
Yes. Grandparents who are the legal guardians of their grandchildren can designate someone to be the legal guardian of their grandchild when they become too sick to care for the child or when they are going to die. A grandparent can do this by filling out a document to designate a standby guardian.

What is a standby guardian?
A standby guardian is a person who is designated by a child's caregiver (a parent, a legal guardian, a legal custodian, or other relative) and, if the court agrees, is appointed by a judge to take care of the child and/or his property because of the caregivers' physical or mental inability to care for the child.
How is a standby guardianship created?

A standby guardianship can be created in two ways (1) a parent or guardian can designate a standby guardian by writing and signing a document in front of two witnesses who are at least 18 years old or (2) a parent or legal guardian can go to court with the person chosen to be the standby guardian and ask that the court appoint or name that person as the standby guardian.

Can parents or legal guardians change the child's standby guardian?
Yes. Parents or legal guardians can change their mind about who will be the child's standby guardian at any time. The way to change the standby guardianship depends on how the standby guardianship was created in the first place.

If the standby guardianship was created informally, without going to court (as described earlier in step One), the parent or legal guardian can just notify the standby guardian by telling him or her that they have changed their mind.

If the standby guardianship was created formally, by going to court (as described in step Two), then the parent or legal guardian must go back to court and file a notice telling the court that they want to change the standby guardian. Then they must also immediately tell the standby guardian that the notice has been filed and that he or she is no longer the standby guardian.

Do the rights of the parents end when a standby guardian is chosen for their child?
No. The rights of parents are not ended when a standby guardian is chosen. A standby guardian's authority or power begins only when the parent or legal guardian says so. For example, when they are no longer able to take care of the child, because of illness or other reason, or when they die.

Does a standby guardianship last forever?
No. A standby guardianship becomes a guardianship when the parent or legal guardian is no longer able to take care of the child or when the parent or legal guardian dies.

What happens if the birthparent objects to the standby guardian that was chosen?
The court will decide what is in the best interests of the child. If a parent who did not choose the standby guardian objects and tries to get custody of the child, that parent has a right to the custody of the child over the person chosen as the standby guardian. However, if the parent is not fit or if extraordinary circumstances exist which require that someone else get custody, then the parent may not be able to get custody over the child. The court will decide who will be the child's guardian based on what is in the best interests of the child.

When does a standby guardianship begin?
A parent or legal guardian decides when a standby guardianship should begin. It can begin when:

  • the parent or legal guardian becomes mentally or physically unable to take care of the child
  • the parent or legal guardian becomes too weak to take care of the child and agrees that the guardianship should begin
  • the parent or legal guardian dies

How does the standby guardian know when they become the child's guardian?
The standby guardian's authority or power will begin when:

  • he or she receives a document, signed by the doctor of the parent or legal guardian, which states that the parent or legal guardian cannot take care of the child
  • he or she receives a copy of the parent or legal guardian's written consent saying the guardianship can begin
  • when he or she receives the parent's or legal guardian's death certificate

How does a standby guardian become a legal guardian?
Standby guardians must go to court after they receive proof that they need to become responsible for the child because the child's parent or original legal guardian can no longer take care of the child.

If the parent or legal guardian did not go to court but chose you as the standby guardian in a signed document, you have sixty (60) days after you receive proof that the parent or legal guardian can no longer take care of the child or has died and to ask the court to appoint you as guardian.

If the parent or legal guardian went to court and asked the court to appoint you as the standby guardian of the child, you have ninety (90) days after you receive proof that the parent or legal guardian can no longer take care of the child or has died to ask the court to appoint you as guardian.

What authority or power do standby guardians have?
A standby guardian is responsible for the care of the child when the parent or legal guardian can no longer do so. Once a standby guardian assumes responsibility for a child, he or she can make medical, educational and other major decisions on behalf of the child.

Does the court have court have to appoint or name the person chosen as the standby guardian as the legal guardian?
The court must appoint or name the standby guardian as the legal guardian only if it finds that it would be best for the child to do so.

What happens if I do not ask the court to appoint me as the guardian after I receive proof that the parent can no longer take care of my grandchild or has died?
If you do not ask the court to appoint you as guardian, you may lose the authority or power to act as the child's guardian.

Copyright 1994-2001 – HELP for Grandparent Caregivers

Grandparent Caregiver Law Center of the Brookdale Center on Aging of Hunter College