What does it mean to be a legal guardian; where can I find information?

Publication Date: July 15, 2021


Legal guardianship is one of the options available to parents who are planning for the care of their children in their absence due to a variety of situations, such as illness or incarceration. It allows parents to name a caregiver and to give the caregiver certain legal rights regarding the care of the child(ren). In most cases, the parents’ legal rights are not terminated and the parents still play a role in their children’s lives. Legal guardians have custody of the children and the authority to make decisions concerning the protection, education, care, discipline, etc.

Legal guardianship is assigned by a court, such as the family court, according to state laws. For parents/guardians involved in guardianship cases, it may be helpful to consult with and/or retain the services of an attorney who practices in the area of family law for assistance. If assistance is needed in locating an attorney, the American Bar Association (ABA) website provides a variety of services to the general public, including the Find Legal Help webpage, which includes pro bono attorney referrals and links to court resources. The ABA features a section titled Free Legal Answers to submit questions about civil legal issues. Also, a directory of law schools that offer pro bono programs is available on the ABA website.

In addition, guardianship can also be a permanency option for a child who has been placed in out-of-home care as it creates a legal relationship between a child and caregiver that is intended to be permanent and self-sustaining and can provide a permanent family for the child without the necessity of terminating the parents' parental rights. The child is able to maintain family connections while gaining the stability of a permanent home with a relative caregiver who has demonstrated a commitment to caring for the child. Child Welfare Information Gateway, a service of the Children's Bureau, provides summaries of state laws on its website. See Kinship Guardianship as a Permanency Option.

Finally, standby guardianship differs from traditional guardianship in that the parent retains much of his or her authority over the child. Many states developed these laws specifically to address the needs of parents living with HIV/AIDS, other disabling conditions, or terminal illnesses who want to plan a legally secure future for their children. Child Welfare Information Gateway also offers summaries of state statutes in its publication Standby Guardianship.

For prospective guardians who meet the requirements to provide a suitable permanent home for the child in all respects except for the ability to assume complete financial responsibility for the child’s care, states may provide an array of services and financial supports. These supports include kinship navigator services, federally funded subsidies through title IV-E, and state-funded subsidies. For information about state guardianship assistance payments that may be available to relative caregivers, please view the state factsheets on the Guardianship.org website.

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