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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 July, 2011

What is parental appointment of a guardian for?

Parental appointment of a guardian is for a parent to appoint someone to take care of his or her 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 can appoint a guardian of minor without having to go to court first.

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 the presence of two witnesses.  The guardian 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
  • A physician 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 that 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 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

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:

These papers are usually filed 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 by filing a written objection to the appointment before it is accepted 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 (if his or her parental rights have not been terminated) files a written objection in court
  • 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 or cause it to 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 has 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.

What's next is that the court decides whether to appoint the petitioner as guardian.

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

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