Guardianship records are an underutilized resource available to family historians. These are often difficult to find and often misunderstood.
A guardian has been appointed in the past for the sole purpose of protecting the legal interests of a minor or incapable person. Situations requiring guardianship most often included the death of a relative (usually the father) involving valuable land and estate. When the father dies, a minor child is identified as an “orphan” while the mother may still be alive. A guardian would be appointed to protect the interests of the minor in the estate (land, money or valuable inheritance) until the child is of age. The guardian did not take custody of the child or raise the child, as one thinks of guardians today. The child would continue to live with his mother after the father’s death. Guardians were often friends or family – even an older sibling. While a mother had no legal status to represent her own child, we see some women serving as guardians for their children. This is more common in the 1800s.
A minor child was anyone under the age of 21. Sometimes minors were referred to as “infants” in legal documents. This doesn’t mean the person was a hugging baby, just that they were not of legal age to run their own affairs. Minors under 14 are appointed guardians by the court. Minors aged 14 or over had the right to choose their guardian and could also choose to go on an apprenticeship, but still could not manage their inheritance before the age of 21. For girls, guardianship ended at their marriage, even if they were still minors. Their new husbands then ran their business.
When considering whether to seek guardianship after the death of a parent, follow this simple rule: no inheritance, no guardianship. The poor orphans who were not going to inherit anything did not need a guardian because there was no inheritance to protect. These children would continue to live with their mother after the father’s death. If the mother was deceased or unable to care for the children, they could be looked after by other family members, placed in an orphanage, or sent by the court to serve as apprentices.
Guardians had legal responsibilities to the court and to their wards. Their job was to represent the legal interests of their wards, protect their inheritance, manage their finances after the estate was settled, and report periodically to the court. A guardian was usually appointed soon after the parent’s death, around the time an estate was opened. Remember that an estate would be opened if the person owned land and other valuables, whether or not there is a will. This was most often dealt with by the probate court.
The guardians were removed from their posts when their ward reached the age of 21. They could also be removed from their posts by the court for breach of their duties. At the age of 14, a ward could choose a different guardian. If the mother had been appointed guardian, her guardianship over her minor children would cease upon remarriage, as it was assumed that she could not protect the interests of her children against her new husband.
Guardianship records can be found in a variety of court records, depending on the time period and jurisdiction of the county and state in which you are researching. If an owner father has died leaving children under the age of 21, you should look for these documents as a guardianship has most likely been put in place. Some of the places to look are the estate papers and entries, trusteeship registers and indexes, the “full file” (when the estate has been closed), estate court entries, guardianship obligations, orphans court, family court, common plea courts.
The files are everywhere and are not necessarily online. But finding them can be very informative for your research.