Extended family relationships define much of society and life in the CNMI. This is primarily an aspect of Micronesian culture, but the situation commonly arises whenever a parent needs to travel off-island for a significant period of time, whether it be for work or medical treatment, for example. One of the ongoing services that our office provides is drafting legal documents to allow an individual to care for another’s children (or handle another person’s financial matters.) This document is called a power of attorney, and it can be effective. However, many government agencies and financial institutions may not acknowledge a power of attorney. In such cases, it may be necessary to file a petition with the court in order to be appointed legal guardian of the child.
A guardian is someone appointed by a court to take care of another individual (the ward). The appointment gives the guardian the legal right and duty to manage the ward’s affairs. The information provided here only covers guardianship of a minor, which is an individual under the age of 18.
What is a guardianship for?
How is a guardianship different from an adoption?
How is a guardianship different from a power of attorney?
Who can be a guardian?
How do you get a guardianship?
When does a guardianship end?
What is a guardianship for?
Generally, a guardian has the legal right and duty to take care of a minor's personal needs, including shelter, education, and health care. If the minor owns significant property or money (called the minor’s estate), a guardian may also have the right and duty to properly manage the estate. Guardianship is often necessary in the following common situations:
• making medical decisions and getting copies of medical records;
• making school-related decisions and getting educational records; and
• accessing certain public benefits, such as public housing. back to top
How is a guardianship different from an adoption?
Guardianship allows the guardian to make decisions that a parent can make for the minor child. It does not end the parents’ legal relationship with the child. In contrast, an adoption permanently ends the legal relationship between the parents and the child. The birth parents no longer have the right to custody or visitation. They also are no longer responsible for child support. Also, in an adoption, the child no longer has a right to inherit from the birth parents. back to top
How is a guardianship different from a power of attorney?
The main difference between a power of attorney and a guardianship is the involvement of the court. A power of attorney is a document that authorizes one person to act on behalf of another person. In other words, with a power of attorney, you give someone the legal authority to manage any of your own affairs, such as your property or your medical care. The power of attorney can be drafted and put into legal effect without court approval. On the other hand, a guardianship is established and supervised in a court action.
Another main difference is that third parties, such as government agencies or financial institutions, do not always and in all circumstances acknowledge the power of attorney. Some concerns a third party might have are whether the power of attorney was revoked or fraudulently altered. Again, these concerns come from the fact that there is no judicial oversight when it comes to the issuance of a power of attorney. back to top
Who can be a guardian?
A guardian usually is a family member. While the law prefers this, it is not required. Sometimes a guardian can be a family friend or other unrelated adult who cares about the well being of the minor. Guardians must be able to assure the court that they can provide for the basic needs of a minor, such as food, clothes, shelter, medical care, safety). back to top
How do you get a guardianship?
You must start a court action. This is done by filing a petition with the court. The petition serves as your request to the court to be appointed guardian and should include the following information:
1. Name, birthdate, and residence of the minor;
2. The name, age, and relationship of the proposed guardian;
3. The reason why a guardianship is needed;
4. The minor's estate, if any;
5. Who has current custody of the minor;
6. The names and addresses of parents, adult siblings and grandparents;
7. Proposed conduct of the guardianship including what the proposed guardian intends to do with the assets of the minor; and
8. Such other information as will assist the court in making its determination.
Once the case is started, a court hearing will be scheduled. You will be required to publish the hearing notice in a newspaper of general circulation (for example, the Saipan Tribune or Marianas Variety), post the hearing notice at the courthouse for at least 10 days, and personally serve or mail the notice (certified, return receipt requested) to all living parents, grandparents and adult siblings of the minor as well as anyone who has custody of the minor.
At the hearing, the judge will review the case and allow for anyone who has an interest in the case to be heard. These people include the minor’s parents and relatives. The main guiding principle in a guardianship case is the best interests of the minor. Then the judge will make a decision.
Because guardianship law can get complicated, it might be worthwhile to obtain the assistance of an attorney when starting a guardianship court case. back to top
When does a guardianship end?
A guardianship usually ends when one of the following happens:
• the ward reaches 18 yrs. of age (and is no longer a minor);
• the guardianship expires under the terms of the court order; or
• there is a future determination by the judge that the guardianship is no longer necessary. back to top
