MEET THE SPECIAL GENERAL GUARDIAN

March 28, 2013 § 2 Comments

The governor signed a bill into law on March 14, 2013, that will introduce the concept of “Special General Guardian” to our jurisprudence.

SB 2375, which goes into effect July1, 2013, addresses an increasingly frequent, and troubling, phenomenon — the absent parent. More and more, we are seeing cases in chancery where the parents simply abandon responsiblity for their child or children to relatives or even neighbors. Drugs are the most common reason, but so are immaturity, mental illness, and incarceration.

Under our current system, the person who wants to take responsibility for the child must apply to the court for either a guardianship or custody. A guardianship requires an attorney, accountings, notices to creditors, and on and on. A custody action usually entails litigation because even irresponsible parents balk at losing custody.

Under the new law, codified at MCA 93-13-37, “If the minor ward has a father or mother but no parent able to take responsibility for the minor, and the minor’s assets do not include any real property, cash-on-hand of no more than Two Hundred and Fifty Dollars ($250), and personal property worth no more than One Thousand Dollars ($1,000), and the court finds that it would be in the best interests of the minor, a special general guardian who is related to the minor by blood or marriage may be appointed for the minor.” An attorney is not required, and the court “shall waive” annual or final accountings. At any time that any realty, personalty or monies of the ward greater in value than the initial limits come into the hands of the special general guardian, he or she must comply with all requirements of the law pertaining to general guardians, and, in addition, must seek directions from the court as to the disposition of the assets.

The law also provides an abbreviated procedure for closure, which does not necessarily require a final accounting.

This provision will definitely meet a pressing need in chancery court. The general guardianship statutes do not quite fit this situation. Also, many grandparents (by a large percentage the most frequent petitioners) in these cases are already financially pressed and are getting no financial help from the natural parents, and they find it difficult to divert funds to legal expenses that they would prefer to spend on their new responsibilities.

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