There is nothing more disruptive to a family as the loss of a parent – the only exception is the loss of both. In that case, a brother or sister of legal age may need to step in and assume guardianship of younger siblings. The decision to assume the parenting role is a highly personal matter, but becoming a legal guardian is a matter for the court.
Sibling Guardianship 101
The laws related to becoming a guardian vary from state to state, but one standard across all is age. You need to be at least 18 to assume responsibility for a minor. The first step is to prepare and file your petition, typically in probate court in the county of residence. If for some reason you and your sibling live in different places, always record in the county of residence for the minor.
Next, you need to determine whether or not your state has established a hierarchy for assigning guardianships. Hypothetically, if a grandparent is first on the list to take responsibility for a minor child, they would need to relinquish their right before a sibling’s petition could be heard.
When you file your petition for guardianship, you will need to serve all interested parties (typically other family members) with a copy of the papers.
Hire an Attorney or Not?
The forms to file a guardianship are publicly available in most states. If you feel confident you understand the responsibilities and the legalese, you can try to file on your own.
That said, there are some significant benefits to hiring an attorney. If there is any inclination that someone in the family might challenge your guardianship, it makes sense to hire a lawyer. If your parents’ estate is financially complex, it’s best to hire an attorney to help navigate the process of securing funds to care for your newly acquired ward.
If the inheritance was left to your sibling, you might be asked to prove that you are capable of managing the money. An attorney can help you prepare for the court’s questions and keep you from getting blindsided.
By petitioning the court, you become legally responsible for your sibling until they turn 18. Make sure you understand what that entails regarding your day to day life. For you and your sibling.
The Hearing for Sibling Guardianship
At the hearing, you (and your attorney) will present evidence to the judge to demonstrate your ability to serve as a guardian. You are entitled to bring witnesses and submit evidence to prove your capability. Anyone who opposes your petition is also allowed to present their case against you to the judge.
The court is always going to act in the child’s best interest. The purpose of the hearing is to prove to the judge that you are the most qualified person to provide for their care.
We can’t emphasize this enough – if you know your petition is going to be contested, hire an attorney to avoid confrontation with other family members. Your sibling doesn’t need to be caught in the middle of a family fight.
All parties should try to keep their emotions under control for the sake of the child. Don’t think the judge won’t notice if it appears people are more concerned about winning than about the child’s well-being.
After the Decision
The judge will decide whether or not to grant your petition. If your petition is rejected, there is an appeal process, though there’s typically a short window to respond. If you petitioned the court on your own, you might want to consider engaging an attorney to assist with the appeal.
But even if you’re awarded guardianship, the court will continue to monitor your relationship with your ward. You will occasionally need to report in and respond to any questions. Your guardianship is terminated when the ward reaches legal age or gets married before reaching legal age.
In some states, a guardian may need to take an oath declaring that they will act in their ward’s best interest. When significant wealth involved, a guardian may also need to answer to trustees or the executor of the estate.
If there is any question about your ability or integrity in dispatching your responsibilities, the court may hear challenges to terminate the guardianship.
Siblings with Special Needs
Children with special needs can be dependent on their parents well into adulthood. Should their parents pass on or become incapable of providing care – a sibling may consider a petitioning for guardianship.
Typically, the parents of a dependent child with special needs will make provisions in their will that may include designating a guardian. But younger families don’t always make wills, which can lead to problems maintaining the quality of care for the dependent child.
There are multiple issues assuming guardianship of a person with special needs. It is highly recommended you discuss your petition with an attorney and financial advisor.
Sibling Guardianship of a Minor Special Needs Child
The guardianship of a younger sibling with special needs is likely to be a significant commitment, emotionally, physically and financially. Should a petition for a guardianship be granted, the legal responsibility extends until they reach the age of 18.
But based on their condition, that dependency may extend beyond legal adulthood.
The process for your petition is the same as addressed above, though the judge may have more questions related to your ability to care for the child. If you plan to maintain the current level of care – in-home or supported living – the court may wish to hear the specifics of how you will accomplish that.
You should be prepared to demonstrate your financial capability to continue whatever quality of care is currently provided.
If you are planning to open your home, you might need to prove that the physical environment of your home can accommodate the child’s disability. This could include a review of entryways or stairs, bathrooms and vehicles.
The judge may want you to affirm your availability to meet the needs of the child.
Legally an Adult
A guardianship can be arranged for a sibling who is over 18 but unable to manage their affairs. This proceeding is handled in probate court. There are two types of guardianships – Care of the Person and Care of the Estate.
A Personal Care guardian is appointed when a person cannot manage their daily lives – mobility, grooming, nutrition, medical care – on their own. A Care of the Estate guardian is appointed when people cannot successfully manage their finances.
This proceeding is a little different – the court must declare the person legally incompetent. Though that may sound harsh – the court takes great care to protect the rights of the individual. The goal to make sure the person get the supports they need for the best quality life possible.
When Parents Aren’t Able to Provide Care
The physical and emotional care that many special need children require can be demanding. As parents age or have health issues of their own, they may no longer be able to act as a caregiver.
Sometimes a guardianship is needed to relieve your parents of a situation that has become unmanageable and make sure your sibling gets the care they need.
The positive component in this scenario is that transfer of responsibility can be discussed, and a mutually beneficial approach can be determined. But depending on the age of your sibling, it’s probably best to discuss your petition with an attorney.
Once you become a guardian, you assume legal responsibility for the well-being of your ward. The decisions you need to make might not be the ones your parents would choose. It’s important for everyone to understand the guardian’s role, responsibilities, and authority.
The goal here to relieve a stressful situation – not add to one.
Be Kind But Thoughtful
The decision to become a guardian for a younger brother or sister has to be thought through. Of course, you want them to know they are loved and safe. That’s not in question.
Talk to your sibling and listen to what they have to say. If you have other family members, sit down and talk about the guardianship. If you’re married, make sure you and your spouse are on the same page – particularly if you have children of your own.
This is even more essential when the child in question has special needs. Depending on the type of disability – physical and emotional, the impact on your household and lifestyle will be significant.
If it’s just the two of you, get a copy of the guardian responsibilities for your state. If there is an inheritance or financial assets involved, it’s probably in your best interest to hire an attorney.
On a non-legal note, a child who has just lost a parent or has a major change in routine may struggle behaviorally – acting out in school or at home. Don’t hesitate to seek to counsel if things start to get off track. Be prepared to have patience, with your sibling and with yourself.