(Revised 2/20/07 ML #3066)
N.D.C.C. § 27-20-481(2) states that an individual appointed as a legal guardian has:
If there is a parent with remaining parental rights, the rights of a legal custodian; and
If there is no parent with remaining parental rights, the rights of a legal custodian and the authority to consent to the child’s adoption, marriage, enlistment in the armed forces of the United States, and surgical and other medical treatment.
N.D.C.C. § 27-20-37 sets out the rights and duties of a legal custodian as follows:
The right to the physical custody.
The right to determine the nature of the care, placement, and treatment of the child, including ordinary medical care as well as medical or surgical treatment for a serious physical condition or illness which in the opinion of a licensed physician requires prompt treatment, except for any limits the court may imposed.
The right and duty to provide for the care, protection, training, and education, and the physical, mental, and moral welfare of the child, subject to the conditions and limitations imposed by the court and to the remaining rights and duties of the child’s parent or guardian.
N.D.C.C. § 30.1-27-09 states that a guardian of a minor has the powers and responsibilities of a parent who has not been deprived of custody of the parent’s minor and unemancipated child. The statute lists the following powers and duties:
The guardian must take reasonable care of the ward’s personal effects (property).
The guardian may receive money for the support of the ward and shall apply it to the ward’s current needs for support, care, and education.
The guardian is “empowered to facilitate the ward’s education, social, or other activities and to authorize medical or other professional care” and to consent to the marriage or adoption of the ward.
The guardian must report the condition of the ward and the ward’s property as the court may order.
The statute states two instances in which the guardian does not have the same responsibilities as a parent:
The guardian is not obligated to provide from the guardian’s own funds for the ward; and
The guardian is not liable to third persons by reason of the parental relationship of the ward. [30.1-27-09]
However, these statutes cited to this point should not be read in isolation. Other statutes located in various parts of the North Dakota Century Code create additional responsibilities or liabilities. In the area of motor vehicle operation, N.D.C.C. § 39-06-09 imputes the negligence of a minor operating a motor vehicle to the person who has signed the application of the minor for a permit or license. Guardians may also be required to participate in the ward’s treatment, or face contempt of court. N.D.C.C. § 27-20-27.1 declares:
It is the policy of this state that every parent or guardian has an obligation to participate in any treatment of the parent’s or guardian’s child as ordered by the juvenile court. The juvenile court may hold any parent or guardian who willfully fails to participate in treatment in contempt of court. (emphasis added)
Caution prospective guardians to get detailed legal advice on the scope of their responsibilities and liabilities from their legal advisor. This is especially important if there are particular issues concerning responsibility or liability and the prospective guardian has expectations about the extent of responsibility or liability.
General speaking, the guardian has the rights and responsibilities that a parent would ordinarily have. It may be helpful to think of parental rights and responsibilities as a bundle: In some cases, the guardian will have the entire bundle; in other cases, the court’s order creating the guardianship may divide the bundle between the guardian and a parent or others, such as a grandparent. The division of the bundle of rights and responsibilities will depend on the facts of a given case, with the court being guided by the welfare and best interests of the minor. [30.1-27-04] An order appointing a legal guardianship terminates any authority of a parent that is granted to the legal guardian under that order. [27.20-46(2)] For example, the court order establishing Aunt Gail’s legal guardianship of Wanda states that Aunt Gail may determine where Wanda will attend school and receive non-emergency medical care. Melanie, Wanda’s mother, and Frank, Wanda’s father, would no longer have authority to make those decisions, in view of the guardianship order. This does not mean that all Melanie’s and Frank’s parental rights and responsibilities are terminated, where there has been no judicial termination of parental rights. It does mean that the rights and responsibilities of the guardian and the parents must be examined individually.