Do you have a nephew or a granddaughter whose parents are no longer able to take care of them? Oftentimes the parents of the child might be unable or unwilling to take care of their child. In such situations a guardianship option is provided by the law to ensure that the minor child is looked after when the parents might not be able to provide that care. Under a guardianship, a caregiver, known as a guardian, can step in and take care of the child. A guardian is someone who has been tasked with the responsibility of taking care of the child.
It is important here to point out that a guardianship can be set up to not just take care of a child, but also for adults who might not be able to take care of themselves. Guardianship law is state-specific, and each state has its own legal provisions on it. In Missouri, the governing guardianship statute is in Chapter 475 of the Missouri Revised Statutes.
Guardianship of a Child
The law assumes that the mother and father are, equally, the natural guardians of the child. Section 475.025,of the a mother and father are the natural guardians of their children and have control over “the custody and care of their persons and education.” Therefore, the law, naturally, assumes that the parents are the guardian of a child. Hence, , only authorizes the court to appoint a guardian for a minor child when the parents are unwilling or unable to undertake guardianship responsibilities. There could be many different reasons due to which the parents are unwilling or unable to take care of the child, for instance drug addiction, mental health issues, or any health-related problems. The pertinent provision specifically states that the Court may grant guardianship of a child under the following circumstances:
(1) Where a minor has no parent living;
(2) Where the parents or the sole surviving parent of a minor are unwilling, unable, or adjudged unfit to assume the duties of guardianship;
(3) Where the parents or the sole surviving parent have had their parental rights terminated under chapter 211.
Who can be appointed as Guardian?
Now that we understand the prerequisites of a guardianship, we now need to look at who can be appointed as a guardian over a child. As per RSMo section 475.045.3 the Court can appoint as guardian only someone who is most suited to the best interests of the child. It is also important to remember that the child does have a say in the matter. Consent must be obtained from a child, who is over the age of 14, for the guardianship appointment. Furthermore, a child, who is over the age of 14, can also select a guardian if neither parent is alive.
How is a Guardian appointed?
Missouri law allows parents to nominate a guardian to take care of their child even when they are alive. Such a circumstance could occur if the parents are unable to take care of their child, for instance due to being extremely ill. However, such a guardianship cannot last for more than a year. Regardless of whether the child or the parents have nominated a guardian, the process really begins with the prospective guardian filing a petition of guardianship with the court. The petition must state why the guardianship is in the best interests of the child. This process will also entail providing numerous documents and varied pieces of information. This can include explaining why the parents are unfit to care for their child and why a guardianship is in the child’s best interests. If the child or the parents disagree over the appointment, they can contest the petition.
What about situations where the existing guardian of the child is posing a danger to the child? Missouri law also allows for appointment of a temporary guardianship through emergency petitions. An emergency petition can be used in situations where the child’s safety might be under risk due to existing circumstances. For instance, there could be situations where the grandparents taking care of the child have had a sudden lapse in health or have become addicted to drugs, for instance, thereby interfering with their ability to take care of the child. In such a case a temporary guardian can be appointed for a brief period.
Duties of a Guardian
So, what are the duties of a guardian? A guardian must act in the welfare and best interests of the ward. The guardian is responsible for providing the ward with support, maintenance, and education as well as looking after their general needs.
As you can see there are many differing factors which go into setting up a guardianship and therefore it is important that all angles are covered.
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