What Is 'Guardianship' For?

We offer the formulation of "guardianship agreements" for parties seeking to divest themselves of the day-to-day responsibilities for caring for their minor child to a third party or relative. These situations typically arise where the natural parent or legal custodian of the child will be unable or unwilling to care for the child for a temporary period of time. As such, their rights need to be transferred temporarily to another party that will stand as a parent for the child or what's known as " in loco parentis."

The phrase " in loco parentis" refers to a person who puts oneself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. The status of in loco parentis embodies two ideas; first, the assumption of a parental status, and, second, the discharge of parental duties. The rights and liabilities arising out of an in loco parentis relationship are, as the words imply, exactly the same as between parent and child.

There are generally three levels of legal rights that can be transferred or given to a third party regarding a minor child's person and estate:

  • Adoption transfers all rights of the parent(s) to another forever and is irrevocable.
  • A custody agreement which has been made an order of court is a more permanent way of transferring these rights regarding the child to another party, yet is reversible. Both parties to the order must agree or the court must order that the custody agreement and order is to be changed. It is a mutual decision between the parties to the agreement and order OR a judge must decide after a hearing to change it.
  • A guardianship agreement is only temporary and can be changed and modified by the party which gave the power to care for the child and/or the child's estate to the other party. It may be unilaterally revoked, meaning without agreement and consent of both parties.

Note: even if a guardianship agreement is only temporary, it may still provide the party receiving the child the status of " in loco parentis." This means that the party maintaining guardianship of the child may petition the court later for custody of the children should a natural parent decide that a more permanent order is appropriate or if the natural parent has not abided by the terms of the guardianship agreement.

Guardian Of Person, Guardian Of Estate

Two classes of guardianship of minors are recognized in Pennsylvania: that of a minor's person and that of a minor's estate. The guardian of the minor's estate is entrusted with the control of the minor's property and has powers, duties, and liabilities almost identical with those of a trustee.

The guardian of the minor's person is invested with the care of the minor's person and, thus, is entitled to the care and custody of the minor but does not generally have the power to deal with or exercise control over the minor's estate. Though the spheres of authority of a guardian of the person and of a guardian of the estate are distinct and mutually exclusive, if the guardian of a minor's person does take possession of or deal with property belonging to the minor, the guardian must account for the minor's property in the same manner as a guardian of the minor's estate. The minor's natural guardian falls into this category of guardianship.

How Are Guardianships Established?

A guardian of a minor person is typically appointed in two ways:

  • By order of the orphan's court upon receipt of a petition and after a hearing
  • By appointment of a natural parent.

A guardian has a temporary position to oversee the health, safety and welfare of the minor. They are placed in a position of en loco parentis (position of parent).

A guardian appointed by the natural parent(s) may have their guardianship revoked unilaterally by the parent. This means, that subject to certain limitations, a natural parent has the right to take the minor from the guardian at any time after appointment. In contrast, a guardian appointed by court order may not have the minor removed absent order of court.

Contact Us With Questions About Guardianship

For further information about guardianship agreements, contact Shaffer & Engle Law Offices, LLC. Call 717-827-4074.

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2205 Forest Hills Drive Suite 10
Harrisburg, PA 17112

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