Mississippi Family Law Attorneys
A guardian is a legally recognized custodian of another person or the person’s property with prescribed fiduciary duties and responsibilities under court authority and direction. Guardians are most often appointed for minors (under 21 years old)
but guardians may also be appointed for others including persons in need of mental treatment, incompetent adults, persons of unsound mind, alcoholics and drug
addicts, convicts in the penitentiary, persons in the armed forces reported as
missing, veterans entitled to receive money from the U.S. Veteran’s Bureau, and minor wards of veterans.
There is a presumption of law that a natural parent is the preferred guardian of his
or her children. That presumption may be overcome by showing a lack of fitness of the natural parent which usually involves showing abandonment, immoral conduct detrimental to the child, or mental instability.
We recommend that anyone with minor children make a Last Will and Testament naming a “testamentary guardian” for their minor children. That allows the parent
or parents of the minor children to designate who will have custody of the children upon the death of the parents. In the case of divorced parents or parents who do
not reside together, there is no guarantee that the appointment of a testamentary guardian will trump the presumption that the surviving natural parent is the
preferred guardian. However, if the surviving parent is incapable of taking care
of the children or is unfit to take care of the children, the testamentary guardian stands next in line to take custody of the minor children.
Guardianships are also common when a minor child is involved in an accident or suffers personal injuries in some other fashion. Before any settlement of the child’s claim may be accomplished, the court must approve the settlement and must
appoint a guardian to receive and protect the settlement proceeds. It is common
for the court to require that the settlement proceeds are deposited into an interest bearing account at a federally insured financial institution and held there until the child turns twenty-one years old. No withdrawals may be made from such an account without authority from the court.