INFORMATION
FOR
GUARDIANS OF MINORS
THIS IS FOR GENERAL INFORMATION PURPOSES ONLY. IT IS NOT INTENDED TO BE A COMPLETE STATEMENT OF ALL DUTIES AND RESPONSIBILITIES OF A GUARDIAN. CONSULT YOUR ATTORNEY WHENEVER IN DOUBT.
1. ROLE OF A GUARDIAN
A legal guardian is a person appointed by the Court to manage the assets of a minor. A guardian may also have responsibilities relating to physical custody and care of the minor. The court's written order will state the scope of the guardian's authority.
2. RESPONSIBILITIES OF A GUARDIAN
The guardian of a minor child has very important duties. It will be the responsibility of the guardian to show the Court that these duties have been carried out properly. If the Court finds that a guardian has not carried out his or her duties properly, serious consequences may result. This could involve being held in contempt of court for which the penalty could include a fine or imprisonment. The guardian could also be removed and someone else appointed. This information sheet is an attempt to summarize the primary duties of a guardian.
3. DUTY TO PROVIDE AND RENEW A BOND
A guardian may be required by the Court to purchase a bond to ensure against loss to the minor's assets. An insurance company provides the bond and the minor's assets are used to pay an annual premium. The Court may, in some cases, waive the requirement of purchasing a bond if the minor's funds are placed in a restricted depository account allowing withdrawal only by Court order.
4. DUTY TO FILE AN INVENTORY
Within sixty (60) days after appointment, a guardian of the estate of the ward has the duty to file a sworn inventory containing a detailed list of the assets of the minor. In addition, the guardian must specify the source, amount and frequency of each item of income, pension, social security benefit or any other revenue. Failure to file an inventory within the prescribed sixty days may result in the guardian being summoned to appear before the Court to show cause why the inventory was not filed. Failure to respond to the summons may result in removal of the individual as guardian.
5. DUTY TO MANAGE AND INVEST THE MINOR'S ASSETS
A guardian must take possession of all of the minor's assets. The guardian has a duty to formulate and carry out a plan for managing these assets. The plan must be approved by the judge and is often included in the original order appointing the guardian. The plan may involve selling some assets, retaining others, and investing the minor's funds. These funds should be invested to earn income and may be invested only according to law. A guardian is personally liable for any losses that result from unauthorized or imprudent investments. The guardian must keep the minor's assets separate and apart from his own assets and can never borrow from the minor's assets or use them for his own benefit or for the benefit of anyone other than the minor.
6. LIMITATIONS OF THE POWER OF THE GUARDIAN
Although a guardian generally has broad authority to acquire and manage the ward's assets, the Court will closely monitor the guardian's actions. A guardian may not spend the ward's assets, even for the benefit of the ward, without Court approval. The only exceptions are that the guardian may pay court costs, bond premiums, taxes for which the ward is liable, and the reasonable cost of preparation of the ward's tax return. Similarly, a guardian may not sell, trade, lease, mortgage, transfer, or discard the ward's property without approval in a court order. The Court's permission to spend the ward's money is required even if the guardian is a parent or other relative of the ward. A guardian may use the ward's funds to pay for attorney's fees incurred in carryout out the guardianship by Court approval must be obtained.
If the guardian is also the parent of the minor, the parent has a legal obligation to support the child, and therefore, the minor child's funds ordinarily should not be utilized for necessities such as food, clothing and shelter. However, the Court may allow use of some of the minor child's funds for support, if funds are not available to adequately provide for the child's needs. If not applied for already, the guardian should also inquire into the possibility of obtaining governmental benefits as additional support for the child.
7. DUTY TO KEEP RECORDS AND ACCOUNT FOR THE MINOR'S ASSETS
A guardian must keep complete and accurate records of all the money and other assets, which go into and out of the minor's estate. A running list of receipts and expenses should be maintained. Any accounts containing the minor's funds (like checking accounts, savings accounts, and certificates of deposit) should be held in the name of the guardian on behalf of the minor. (For example, "John Doe as Guardian for Betty Doe.") The minor's funds must at all times be kept separate from the funds of the guardian. If a person serves as guardian for more than one minor, separate accounts for each ward must be kept.
Each year, the guardian is required to file an accounting showing in detail all of the ward's assets and their value, the income received and all of the expenditures made with the ward's funds during the preceding year. In the accounting, each item must be explained, and the current assets on hand must be verified by the bank or financial institution where they are held. The guardian must be able to document every expense and disbursement. Therefore, it is essential that the canceled checks or banking statement from the guardianship account be saved to furnish to the court with the accounting. Additionally, either a copy of the tax return or an affidavit stating that no taxes are due must be attached to the annual accounting.
The guardian must file the accountings in a timely manner. Failure to do so could result in removal as guardian or being held in contempt of court. In certain limited situations, the Court may not require the guardian to file an annual accounting. To determine whether you quality under this exception, consult your attorney.
8. DUTY TO NOTIFY THE COURT
In the event that either the guardian or the minor moves from one address to another or if either should die, the clerk of Probate Court should be notified in writing of the new address or the death as soon as possible.
In the course of performing their duties, guardians can encounter a variety of questions. You should always consult your attorney for advice in these matters. Although they may not give out legal advice, the deputy clerks may be helpful in answering questions regarding procedural matters. The deputy clerks of the Shelby County Probate Court may be reached at (901) 545-4040. The Clerk's mailing address is 140 Adams Avenue, Room 124, Memphis, TN 38103.
The Court appreciates your willingness to carry out your important duties as a guardian. We hope the above information will be helpful to you.
THIS IS FOR GENERAL INFORMATION PURPOSES ONLY. IT IS NOT INTENDED TO
BE A COMPLETE STATEMENT OF ALL DUTIES AND RESPONSIBILITIES OF A GUARDIAN.
CONSULT YOUR ATTORNEY WHENEVER IN DOUBT.
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