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Parental Appointment of a Guardian

Produced by Jeff Wolf (Massachusetts Law Reform Institute) with help from Veronica Serrato (Volunteer Lawyers Project)
Last updated February 2019

What is parental appointment of a guardian for?

Parental appointment of a guardian is for a parent to appoint someone to take care of their child in case the parent dies or becomes unable to care for the child while the child is still under 18.  The parental appointment becomes effective when the parent dies or is not able to take care of the child.  Parents do not have to go to court before they appoint a guardian of minor.

How does a parent or guardian appoint a guardian?

The parent or guardian appoints the guardian of a minor in writing.  They sign the appointment in front of 2 witnesses.  If someone agrees to be guardian, they must must accept the appointment in writing. The Volunteer Lawyers Project has created a form you can use to appoint a guardian in case of your death.

When does the parental appointment of the guardian become effective?

The appointment of the guardian becomes effective when the first of the following events happens:

  • The appointing parent or guardian dies.
  • A court decides that the appointing parent or guardian is incapacitated. Or,
  • A doctor who has examined the appointing parent or guardian says in writing that the parent or guardian is no longer able to care for the child

Note

The parental appointment of a guardian becomes effective before the guardian goes to court.  The appointment remains in effect after the appointed guardian files the necessary papers in court.

How long does the parental appointment stay in effect?

The parental appointment stays in effect until the first of the following happens:

  • The court appoints a guardian.
  • The appointing parent or previous guardian revokes the appointment.
  • An objection is filed by:
    • The minor child if over the age of 14.
    • The other parent if their parental rights were not 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.

When does the person appointed to be guardian go to court?

Within 30 days of when the appointment becomes effective, the guardian must file three things in court:

  1. A notice of acceptance of appointment.
  2. A copy of the written appointment signed by the parent(s) or previous guardian.
  3. Petition for Appointment of Guardian of Minor.

The guardian usually files these papers in the Probate and Family Court in the county where the child lives.  If there is an ongoing case involving the child in the District Court or Juvenile Court, the guardian files the notice of acceptance in that court.

Who can keep the parental appointment from staying in effect, and how do they do that?

The following people can keep the parental appointment from staying in effect:

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

These people can keep the parental appointment from staying in effect. They must file a written objection to the appointment:

  • before the guardian accepts the appointment, or
  • within 30 days after receiving notice that it has been accepted.

For how long is the parental appointment of a guardian in effect?

The parental appointment of the guardian stays in effect until the first of the following events happens:

  • The court appoints a guardian.
  • The parent or previous guardian who appointed the new guardian revokes the appointment.
  • A minor who is the subject of the parental appointment and is over 14 years old files a written objection in court.
  • The other parent files a written objection in court. The other parent can only do this is if they have not lost their parental rights.
  • A person other than a parent who has had custody of the child or with whom the child resided during the previous 60 days.   

The minor, the other parent, or the person other than a parent can prevent the appointment by the court. They can also make the appointment terminate by filing their written objection to the appoinment:

  • before it is accepted, or
  • within 30 days after receiving notice of its acceptance.

What's next?

Remember, the parentally appointed guardian filed a Petition for Appointment of Guardian of Minor within 30 days of the appointment becoming effective.  The guardian is asking the court to confirm his or her appointment as guardian of the minor.

Next, the court decides if it will appoint the petitioner as guardian.

See the next article, Court Appointment of a Guardian for details.

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