Becoming a Guardian

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Family Services of San Francisco and Sonoma counties licenses the homes of
lesbians and gay men, single people, unmarried heterosexual couples, and groups;
places gay teenagers in gay homes; and provides support to these families.
Becoming a Guardian
A guardian is an adult other than a legal parent who is legally responsible
for taking care of a minor. Usually, the guardian takes physical custody
of the child, and sometimes is also given authority to manage the minor’s
assets.
Some guardianships are informal; others are court appointed. In
informal guardianships, the legal parents consent to the arrangement.
Informal guardianships are temporary and can be changed at any time
by whoever placed the child. Informal guardianships are most common
when a parent becomes ill, is incarcerated, or travels extensively and asks
a relative or friend to temporarily take over parenting. There is no legal
process. The parent simply delivers the child to the guardian, usually with
a simple document of authorization.
Formal guardianships involve court proceedings. The proposed
guardian files a petition and the court decides whether the guardianship
is in the best interests of the child. As long as everyone agrees, the judge
usually grants the guardianship and issues an order establishing its terms.
A guardian generally isn’t legally or financially responsible for a child’s
actions—if a child causes damage by vandalism, in most states a parent
is liable but a guardian isn’t. But a guardian can be liable if the guardian
promises, on the child’s driver’s license application, to be responsible for
damage the child causes while driving.
Tip
Welfare benefits usually follow the child. But be sure to check your
state’s laws. Normally, if the guardian is a close relative or meets the welfare
department formalities (which are less rigid than with formal guardianships), the
benefits will follow.
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Informal Guardianships
Here’s an example of a situation in which an informal guardianship
worked well for a set of friends.
Example: Ben, a gay man, and Paula were old friends. Paula’s son
Mark had confided in Ben the summer before coming out to his
mother. Paula wasn’t shocked to learn that Mark was gay, but was
finding him hard to handle. Mark emailed Ben the following letter.
Dear Ben:
Remember how we talked last summer about my parents’ divorce? Well,
I find there’s another reason I want to come to Boston to go to school.
I just told my mother I’m gay and she said, “No 15-year-old can be gay!”
Can you call her and ask if I can come stay with you for the school year? I
can’t even get any studying done around here! She respects you. Please!
Love,
Mark
Paula wrote to Ben at almost the same time. She had no intention
of relinquishing custody or abandoning her duties as Mark’s mother.
She just knew they needed time apart. Her letter was a little different.
Dear Ben,
I need to talk to you. Mark has just been impossible lately, and nothing
I can do or say seems to help. Of course I have known that he’s gay for a
long time, but he has come out to me very belligerently and accuses me
of never understanding him. Frankly, right now, I don’t. I wonder if some
time living apart would help our relationship. He has been talking about
writing you. I sure hope he does.
Love,
Paula
Paula reflected on the various possibilities and concluded that
allowing Mark to live with Ben, a long-time friend and mature
gay man, made sense. Fortunately, it made sense to Mark and Ben,
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too. And Mark’s father readily agreed—he’d taken little interest in
raising Mark for years and was for any solution that didn’t involve
work or money on his part. A court proceeding was unnecessary and
undesirable. Paula’s concern was with Mark’s well-being. And going
to court could produce a nasty reaction from a judge. So Mark lived
with Ben during the school year, and returned to his mother during
the summer.
Written documents aren’t essential to establish an informal guardian­
ship, but they’re desirable. To continue our story, suppose Mark suffered a
serious cut on his arm at school while staying at Ben’s. The wound would
be sewn up by a doctor, under laws authorizing doctors to do what’s
necessary in an emergency. But what if the doctor also recommended
plastic surgery, surgery that had to be done (if at all) within 24 hours?
As this surgery is elective, not emergency, the doctor would require
Mark’s parents’ permission before operating. If Ben had no document
authorizing him to make medical decisions for Mark, he’d have an
obvious problem if he could not find Paula. Or, to switch to a more
pleasant example, suppose Mark wanted to go on a school trip and
needed written permission to attend. Ben would need Paula’s written
authorization in order to sign a permission slip.
And then there’s the question of support. Who pays Mark’s living
expenses? Paula and Ben discussed it and then wrote down their agree­
ment, shown below as a sample informal guardianship agreement. You can
download this form (and all the other forms in this book) from nolo.com.
See the Appendix for the link. Just following the Temporary Guardianship
Agreement is a form of authorization to consent to medical treatment,
which is useful for a shorter stay.
After you write your agreement, make at least four originals: one for
the school, one for the hospital, and others for the unexpected. Have the
forms notarized. In most situations, documents like these should suffice
when a school official, doctor, or bank needs proof that the guardian
can act for the child. If someone refuses to honor the agreement, point
out that you have the legal authority to act. After all, that’s what the
agreement says. If that doesn’t work, call the child’s parents fast. And if a
school or other public agency insists that you use its form, use it.
156  |  A Legal guide for Lesbian and Gay Couples
Sample Temporary Guardianship Agreement
We, Paula Ruiz of 1811 Main Street, Cleveland, Ohio, and John Ruiz of 493 Oak
Street, Cincinnati, Ohio, are the parents of Mark Ruiz, born on August 18,
1997. We grant Ben Jacobs, of 44 Tea Road, Boston, Massachusetts, temporary
guardianship of Mark Ruiz. We give Ben Jacobs the power to act in our place as
parents of Mark Ruiz, to authorize any medical examination, tests, operations,
or treatment that in Ben Jacobs’s opinion are needed or useful to Mark Ruiz.
We also grant to Ben Jacobs the power to act in our place as parents of Mark
Ruiz in connection with any school activities, including, but not limited to,
enrollment and permission for trips and other activities.
While Ben Jacobs acts as guardian of Mark Ruiz, we agree to pay Ben $300 per
month toward Mark’s support, to provide Mark with an allowance of $50 per
month, and to keep Mark on Paula’s health insurance.
Date
Paula Ruiz
Date
John Ruiz
Date
Mark Ruiz
Date
Ben Jacobs
Notarization
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Sample Authorization to Consent to Medical, Surgical,
or Dental Examination or Treatment of a Minor
I, Paula Ruiz, being the parent with legal custody of Mark Ruiz, born August
18, 1997, hereby authorize Ben Jacobs, into whose care Mark Ruiz has been
entrusted, to consent to any X-ray, examination, anesthetic, medical or surgical
diagnosis, or treatment and hospital care to be rendered to Mark Ruiz under
the general or special supervision and upon the advice of a physician or surgeon
licensed to practice medicine in any state of the United States, or to consent
to an X-ray, examination, anesthetic, dental, or surgical diagnosis, or treatment
and hospital care to be rendered to Mark Ruiz by a dentist licensed to practice
dentistry in any state of the United States.
This authorization is valid from September 1, 2011, to June 30, 2012.
Date
Paula Ruiz
Date
Ben Jacobs
Notarization