The Basics of Legal Guardians in Massachusetts
1. What is a Legal Guardian?
In Massachusetts, guardianship is a legal relationship in which an individual has custody of a child that is not biologically theirs. Guardians have legal authority to care for and provide for the minor child they have custody of. If guardians are not legally named, then guardians for a minor child are appointed by a court in the event their parents are unable to care for them.
2. Who Can be a Legal Guardian For Your Child in Massachusetts?
Prospective guardians must be at least 18 years old, reside in the United States, and do not need to be related to you. If they meet those first requirements, their competency to care for your minor child is assessed. This includes a review of the petitioner’s criminal record and involvement with the Department of Children and Families.
In essence anyone without a criminal record or involvement with DCF could request to be the guardian of your child(ren).
3. The Process of Becoming a Guardian in Massachusetts
The process of becoming guardians in Massachusetts involves filing a guardianship petition in the Family and Probate Court, with interested parties notified. The petitioner must submit a medical certificate or clinical team report. No filing fees are incurred, but the petitioner covers costs related to notification and obtaining a bond.
If you have guardians named in an estate plan, they still have to file with the probate court, BUT there is no debate on who becomes your child(ren)’s guardian.
With an estate plan:
You choose a guardian you trust to care for your child(ren) if anything ever happened to you. This process would take under 60 days because your wishes were made clear.
Without an estate plan:
A judge chooses your child(ren)’s guardian. This process could take months because several people could petition for guardianship of your child(ren) and could lead to a legal battle.
4. Responsibilities of a Guardian in Massachusetts
While responsibilities of guardians vary, you can find a list of common responsibilities below:
- Providing for the basic needs of the child, including food, shelter, and clothing.
- Ensuring the child has access to education and healthcare.
- Managing the child’s finances.
- Making healthcare decisions for the child, including medical treatment and consent for surgeries.
- Ensuring the child receives an appropriate education.
- Monitoring the overall well-being and development of the child.
With an estate plan, you can leave detailed instructions about how you want your kids raised and the values, insights, stories, and experiences you want to leave for your children.
Choosing Wisely
Key Considerations When Naming Guardians For Your Child in Massachusetts
Choosing the right guardians, and legally documenting that decision, for your children is essential. This extends beyond merely naming godparents or assuming that grandparents will step in if needed. Instead, it involves a conscious decision-making process to determine who will raise your children if you’re unable to do so. Unfortunately, many parents find the task daunting, leading to common mistakes in the absence of proper guidance, especially from lawyers not trained in the area.
We know this is difficult to think about. We are parents too. We had those thoughts that kept us up at night, “what will happen to my child(ren) if something happens to me?”
We acted, and we found comfort in knowing that if anything happened to us our children would be taken care of by guardians we chose. Guardians we trusted.
To help you through the process, we’ve outlined key steps to select and name a legal guardian:
1. Define Your Ideal Candidate For Guardianship:
- Develop a list of qualities and attributes you value for the long-term care of your children, reflecting your parenting philosophy.
- Consider practical matters like age, physical capability, family structure, geography, and financial stability.
- Clarify that financial guardianship and decision-making guardianship are separate, emphasizing the need for adequate financial resources.
2. Make a List of Candidates:
- Compile a list of individuals who align with your ideals, encompassing family and close friends.
- Prioritize your children’s future over protecting someone’s feelings when selecting a family member.
- If necessary, consider undesirable candidates and work backward, or weigh the preferences of a judge in case you don’t make a choice.
3. Select First Responders (Temporary Guardians):
- Choose a local individual as a “first responder” or temporary guardian, tasked with immediate care during crises until the court finalizes the long-term guardianship nomination.
- Recognize the limitation of plans relying solely on a Will, stressing the need for both long-term and short-term guardianship nominations.
- This process ensures that you not only name guardians but also create a comprehensive and legally binding plan for your children’s future.
At The Parents Estate Planning Law Firm, it is our mission to help parents create a legal plan, so that their children always know they are loved, cared for, and protected, no matter what. Creating an estate plan gives you the power to protect your family in the event anything ever happens to you.
Download our Kids Protection Planning Guide or give our office a call to learn more about naming guardians in Massachusetts.
