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Court Appointment of a Guardian

Produced by Jeff Wolf (Massachusetts Law Reform Institute) with help from Veronica Serrato (Volunteer Lawyers Project)
Last Updated July, 2011

When can the Court appoint a guardian for a minor?

The Court can appoint a guardian for a minor if:

  1. the minor's parents are deceased or incapacitated,
  2. the parents consent,
  3. the parents' parental rights have been terminated,
  4. the parents have signed a voluntary surrender of the child for adoption, or
  5. the court finds the parents unavailable or unfit to have custody.

Does a person appointed guardian by a parent get any special priority?

Yes. A guardian appointed by a parent or previous guardian has priority over any guardian who may be appointed by the Court, so long as the parental appointment of a guardian has not been prevented by an objection from:

  • the minor if over 14 years old,
  • the other parent if his or her parental rights have not been terminated,
  • a person other than a parent who has had custody of the minor or with whom the minor has resided during the previous 60 days.

Who can petition for court appointment of a guardian of a minor?

Any person, including a minor, that is interested in the welfare of the minor can petition for appointment of a guardian.

Who can be appointed guardian?

The court can appoint any person if it decides that the appointment is in the child's best interests.

Can the minor choose his or her guardian?

The court must appoint as guardian a person chosen by a minor over the age of 14 unless the court decides that it would not be in the child's best interests to make that appointment.

Is there anybody that the court will not appoint as guardian?

Yes.  The court will not appoint anybody who is:

  • currently being investigated or has charges pending for assault and battery resulting in serious bodily injury to the child.
  • currently being investigated or has charges pending for neglect of the minor.

Note

To find out if a petitioner has charges pending, the court will look at the petitioner's court records. These include criminal records.

Which court do I file in?

You file in the Probate and Family Court in the county where the minor lives. If there is an ongoing case involving the child in a Juvenile Court or District Court, you can file your petition in that court.

What papers do I file if I want to be appointed guardian of a minor by the court?

Petition for Appointment of Guardian of Minor

Notarized Waiver and Consent to Petition for Guardianship of Minor

See "Can a parent agree to the petition?"

Notarized and Verified Consent or Nomination by Minor

Most courts require the notarized consent of the minor be filed along with the Petition for Appointment of Guardian

See "Can a minor agree to the appointment?"

Affidavit Disclosing Care and Custody

Military Affidavit

Public Assistance Affidavit

Request for Waiver of filing fees and costs (Affidavit of Indigency)

See "What if I cannot afford the cost of filing a petition?"

Bond

See "What is the bond?"

Verified Motion for Appointment of Temporary Guardian of a Minor

See "What if there's an emergency?"

The Juvenile Court has their own versions of many of these forms. Check the Juvenile Court Department forms webpage.

How much does it cost?

There is no filing fee for the Petition.

The cost of service of notice varies from case to case.  If you have to publish the notice in a newspaper, that will cost about $100.  The filing fee for the Bond with Sureties is $50.  The cost of each letter of appointment is $20.

 

What if I cannot afford to file a petition?

You can request that you not have to pay filing fees and basic costs. You file an Affidavit of Indigency.

 

What is the bond?

In order to be appointed, the guardian must sign and file the bond. The bond is an enforceable promise to the court to faithfully carry out the legal duties of a guardian. 

On the bond, the guardian signs his or her acceptance of the appointment to be guardian. 

The law requires a "surety".  A surety is a person who also signs the bond.  By doing so the surety is also responsible to the court for the guardian carrying out his or her duties faithfully.

The court can decide that a surety is not required. Since the guardian does not control the assets or income of the minor, the court usually does not require sureties.

Whom does the petitioner have to notify when he or she files a petition?

The petitioner must notify all "interested parties."  The court has an Interested Parties checklist to help you decide who has to be notified and Instructions about how to give notice.

Interested parties include:

  1. the minor, if the minor is over 14 years old and is not the petitioner
  2. any person who has custody of the minor by court order
  3. any person who is alleged to have had care or custody of the child or with whom the child has resided during the 60 days before the filing of the petition, except foster parents
  4. any living parent of the minor, except a parent whose parental rights have been terminated or who has signed a voluntary surrender of the child for adoption, but if there are no such parents, then the minor's brothers and sisters, or if there are no brothers or sisters, then anyone who is an apparent heir of the child.
  5. the spouse of the minor if the minor is married
  6. any person who has been nominated to be guardian by the minor if the minor is over 14 years old
  7. any parentally appointed guardian (or guardian appointed by a guardian)
  8. any guardian or conservator currently acting in behalf the minor
  9. the United States Veterans Administration if the minor is entitled to any benefits.

How do I let the Court know that I have notified all interested parties?

You must file a Certificate of Service, a sworn statement signed by the person who served the notice.

Who can object to the petition?

  • the minor child if over the age of 14
  • the other parent if his or her parental rights have not been terminated
  • a person other than a parent who has had custody of the minor or with whom the minor has resided during the previous 60 days

To object to the petition, you file an Appearance and Objection form.

Who has the right to an appointed lawyer?

The minor child has the right to have a lawyer to represent him or her if the court decides that the child's interests need to be protected. 

The minor or someone acting on his or her behalf can ask the court to appoint a lawyer for the minor. If the minor or person acting on his or her behalf asks for a lawyer, the court must appoint an attorney.

If the minor is poor and cannot afford a lawyer, the court can order that the minor's lawyer be paid by the state.

Also, low income parents have the right to a court-appointed attorney.

Can a minor agree to the appointment of his or her guardian?

A minor over 14 years old can agree to the appointment of his or her guardian by signing a Notarized and Verified Consent or Nomination form and filing it with the court.

Can a parent or other interested person agree to a petition for appointment of guardian of a minor?

A parent or other interested party can agree to the appointment of a guardian of a minor by signing a Notarized Waiver and Consent to Petition for Guardianship of Minor form.

This is an important form. If you sign it you give up your right to be notified of any required court hearings concerning the case.

How does the court actually appoint the guardian?

The court appoints the guardian at a court hearing.

At the hearing, if the court decides that:

it makes the appointment on a court form called Decree and Order of Appointment of Guardian of a Minor and issues a letter of appointment.

When does a guardianship of a minor end?

It ends when the child turns 18.

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