How Does SSDI Back Pay Work?

How Does SSDI Back Pay Work?

There may come a time when you are not able to work because of a condition that prevents you from doing so. If that is the case, you may qualify for financial assistance from the Social Security Administration. Social Security Disability Insurance is accessible to you if you were once able to be employed in the past but now cannot work for a minimum of one year.

What Is Social Security Disability Insurance?

Social Security Disability Insurance disburses benefits to you or family members who paid Social Security taxes through work earnings and worked long enough, and recently enough. It’s required that you have gained enough work credits to be eligible for SSDI. You are also required to have paid into the Federal Insurance Contributions Act, known as FICA, during the time you were working. The amount of work credits needed to be eligible are dependent upon age. For instance, if you are 50 years old, you will need 28 work credits meanwhile another person who is 40 years old will need 20 work credits. These benefits are paid if there is a medical condition that is anticipated to persist for at least a year. Once you are approved, the monthly payments can be used for your essential living needs such as rent/mortgage, utilities, and medical expenses.

What Back Pay Is

When you are owed back pay, it refers to the SSDI you would have acquired if your claim was approved promptly. Most claims for SSDI are denied at least once and involves a tedious process that can last for months, or even years. Once you are approved, you will obtain the SSDI benefits that you are entitled to. You will start receiving back pay for disability that goes back to the date of the disability onset. Due to a mandatory five-month waiting period, once you have been approved, you will not receive any payments until the five months have elapsed.

How You Will Receive Your Back Pay

All beneficiaries of SSDI benefits must have their payments directly deposited into their bank accounts. In order to obtain back pay, you must make sure that you have a bank account for the payments to be deposited to. If you were disabled for an extended period of time before you applied for disability, you may qualify for retroactive Social Security Disability payments for a timeframe of one year.

Retroactive Payments VS Back Pay

It’s important to understand that back pay is different from retroactive payments. Retroactive payments are paid out for up to the preceding 12 months prior to applying for SSDI benefits if you can demonstrate that you had a disabling condition throughout that time. Back payments are paid out to you up until the date you filed a claim to receive benefits.

How the Social Security Administration Determines Back Pay

The determination of back pay is associated with the date your disability claim was filed as well as the date the Social Security Administration (SSA) determines the established onset date. The distribution of the back pay is dependent on your approval for SSDI benefits. In some cases, you may have a long waiting period if your case needs to be determined by an administrative judge.

What Back Pay May Be Spent On

You may be receiving a lump sum payment that could add up to a substantial amount. You may have been in a financially tight situation while waiting for the Social Security Administration to approve your claim. It’s recommended that you utilize the back pay for basic living expenses such as rent, utilities, food, and health care. It’s also wise to pay off your bills. If you have extra money left over, you probably shouldn’t rush to go on a shopping spree. You may want to consider establishing a bank account that draws interest. Additionally, you may want to deposit the funds into an account in which you have easy access to just in case there is an unexpected emergency such as home repairs, car repairs, or a medical emergency.

Qualifying for SSDI

You may be eligible for SSDI if you are no longer able to work due to a medical condition. In order to be eligible, you need to medically qualify based on the guidelines set out by the Social Security Administration. There is a blue book that has categories for various systems of the body. For each system, there is a listing for the conditions the particular body system has that are debilitating. You will discover the types of medical benchmarks that are required to medically qualify for benefits. This includes treatments, test results, and other medical criteria. You can work together with your doctor to arrange any tests that are required to qualify.

For instance, if you have cancer, you must meet the benchmarks for a cancer listing. The listings for disability are separated based on where the cancer stems from. Each cancer has its set of criteria that are required to be met.

Understand the Difference Between SSDI and SSI

Many people get the terms SSDI and SSI mixed up. SSI is a disability program that is needs-based. Even though you still need to show medical documentation in order to medically qualify, you are also required to meet certain income criteria which include evidence of household income and the amount of people living in the household. Additionally, you are required to provide documentation of all assets such as stocks and bonds, cash, real estate, and bank accounts. There are resource limits that are maxed out at $2,000 per person and $3,000 when it’s a couple.

The Application Process

It’s recommended that you review the Adult Disability Checklist to round up the information and documents that are needed to properly complete the application. After you have gathered the needed items on the checklist, you will complete and submit the application. The application will be reviewed to ensure that you meet a few basic requirements for SSDI benefits. The Social Security Administration will analyze whether you put in enough years of work to qualify and evaluate any ongoing work-related activities. Your application will be processed and your case will be sent to your state’s Disability Determination Services office.

What Happens After You Apply?

After the Social Security Administration has received your application, the appropriate department will review it and contact you if there are any questions or if there are additional documents needed to process the application. You should be on the look-out for a letter that will be mailed out with their decision. If there were other family members included in the application, the Social Security Administration will notify you if they may be eligible to receive benefits.

If You Are Denied

There are plenty of reasons why claims could be denied. It’s not uncommon for disability claims to be denied upon an initial review. One of the most common reasons why claims are denied is due to inadequate medical evidence. You must demonstrate that you do not have the ability to work because of a disabling condition to qualify for disability benefits. A critical aspect in determining whether your claim is successful or not hinges upon medical records from your physicians. If your claim was denied from a previous application, you have an increased chance of being denied again without furnishing additional evidence. Additionally, your records will be under review to ensure that you are adhering to your physician’s recommended treatment plan. If you do not follow your physician’s recommended treatment plan, you could be denied for failure to cooperate. This is because the department that is reviewing your claim cannot correctly conclude if you are kept from working due to your condition.

Get Assistance from a Disability Attorney

Applying for Social Security Disability can be a daunting task with a long approval process and a high potential of being denied. If you have a disabling condition that has rendered you unable to work and you would like to apply for social security disability benefits, it’s wise to work with an experienced disability attorney. By working with an attorney who deals with these types of cases, you have an increased chance of your disability claim being approved.

Lilac City Law knows the Social Security Disability process. Our team will guide you through the disability process so that you can gain a better understanding of what to anticipate. Contact Lilac City Law to discuss your case.

What Does it Mean to be a Ward of the State

What Does it Mean to be a Ward of the State

When an adult is unable to care for themselves due to disability or disease, someone else has to manage their affairs. This is often accomplished by appointing a guardian. When no family member is available to become the guardian, the adult who needs care may become a ward of the state.

What is a Ward of the State?

A ward of the state is a person under the care of the state through an appointed guardian. The guardian is responsible for major medical, financial, and other decisions with input from the ward according to the ward’s ability. Once a guardian is appointed, they have similar duties and powers to a guardian who is a family member or chosen by the family.

How Does Someone Become a Ward of the State?

A judge decides whether someone should become a ward of the state. In some situations, the potential ward may make the request if they recognize that they are not fully capable of managing their affairs. A family member, medical professional, or almost anyone else with a relationship to the potential ward can also make the petition. The court will hold a hearing to review the reasons for the petition, hear from the ward if possible, hear from anyone else who may have knowledge of the situation, and obtain reports from medical professionals or social workers as applicable.

A person may only become a ward of the state if the judge finds that they are in fact unable to manage their own affairs in whole or in part. The preference is to appoint a family member as guardian, but there may not always be a family member who is both willing and able to take on the role. When no family member is available, the judge appoints a state guardian and the person becomes a ward of the state.

How Long Does a Person Remain a Ward of the State?

In many situations, a person becomes a ward of the state permanently, because there are only limited circumstances where the status is removed. One is if the ward recovers and is again able to manage their own affairs. The other is if a family member or other person becomes able to take on the role of guardian and the change is in the best interests of the ward. Both of these situations are reviewed in a hearing to terminate ward of the state status.

What Does the Guardian Do?

The guardian is responsible for all medical, financial, living arrangement, and other major decisions subject to the court order. For example, the court may appoint a separate conservator to manage the ward’s finances. The ward may also retain control over certain decisions. For other decisions, the guardian should consider the ward’s input but also that it may not be in the ward’s best interests to follow that input depending on the situation. A guardian does not perform daily tasks like an in-home caretaker or nurse would but is responsible for overseeing any required care such as by hiring an appropriate caretaker.

Is the State Financially Responsible for a Ward?

Becoming a ward of the state does not mean receiving financial assistance from the state. In fact, the ward is responsible for not only their own costs but reasonable fees for the guardian’s services as well. If the ward has savings or other assets, the guardian is responsible for using them to the ward’s benefit with oversight from the court. Other financial resources the ward may have include wages from any job the ward is able to perform, Social Security Disability benefits, and other government assistance programs. The guardian is responsible for helping the ward manage and obtain these financial resources. The state is responsible for overseeing the guardian’s actions. Any special assistance the ward may receive due to being a ward of the state or due to their condition is separate from the legal process of becoming a ward of the estate and having a guardian appointed.

What Are the Benefits of Being a Ward of the State?

Being a ward of the state is really a last resort option. When no other options are available, the estate will take the steps needed to make sure that a person’s basic needs are met.

What are the Disadvantages to Being a Ward of the State?

The biggest disadvantage to being a ward of the state is being under the guardianship of an unknown person. Guardians are vetted, but an overworked and underfunded legal system means that things don’t always go as planned. There have been numerous complaints of financial abuse by a guardian. In some cases, this has even involved someone attempting to become someone’s guardian for the purpose of draining their assets. While these types of crimes have also been committed by related guardians, knowing who your guardian will be gives you more control over the situation as well as the family pressure to due the right thing.

Other complaints regarding guardians have included disregarding the ward’s wishes, not providing individualized solutions, not providing information to family members or the court, or inappropriately controlling or restricting relationships with others. The causes for these are varied. In some cases, a well-intended guardian is simply too overworked. In others, the guardian is more interested in collecting a check than providing the service if not trying to hide an outright financial fraud. Depending on the ward’s capacity and level of involvement from their family, if any, it can be difficult for anyone to recognize what is going on and to try to find a solution.

What are the Alternatives to Becoming a Ward of the State?

Becoming a ward of the state is sometimes unavoidable, but can be prevented in some cases with a little planning. The best alternative is to have a family member or friend who can become the guardian. Potential guardians sometimes avoid taking on the responsibility out of fear of a potential financial burden. Remember, though, that the guardian is not financially responsible for the ward. Working with an attorney or a social worker can help identify the financial resources available to the ward so that all of their expenses can be met. The guardian may also be eligible for tax benefits if they do cover some of the ward’s expenses such as allowing the ward to move in.

Preplanning is also a good alternative to becoming a ward of the state or at least to some of the potential negative outcomes. Someone with a family history of dementia or who is concerned about an accident or sudden illness may want to put medical and financial directives in place in case they lose the capacity to make decisions in the future. Any future guardian would have an obligation to follow these directives except where a judge agrees that very compelling circumstances require a change.

Can a Guardian Be Blocked or Replaced?

The court must always agree that a potential guardian would serve the best interests of the ward. A guardian may also be terminated and replaced when the judge finds it is in the best interests of the ward to do so. The ward, if able, or any person with knowledge of abuse or unsuitability may challenge the appointment of a guardian or request that a guardian be replaced. It is not required to prove that the guardian has committed any particular abuse, violated the law, or acted outside the bounds of the original court order. Those factors can influence a judge’s decision, but the fact that someone would be better suited to be the guardian is enough for a replacement. The court will hold a hearing to review the evidence, allow the guardian to respond, and make any adjustments needed.

Work With an Estate Planning Lawyer

To learn more about the process for becoming a ward of the estate, how to navigate it, or how to avoid it, talk to a local estate planning attorney today. The attorneys at Lilac City Law are here to help you do what’s right for yourself and your loved ones. Contact us now to schedule a consultation.


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Understanding Guardianship for Young Adults with Disabilities

Understanding Guardianship for Young Adults with Disabilities

As a parent, friend, or family member of a young adult with a disability, you are intimately aware of your loved one’s capabilities and limitations. This person may require assistance in making important decisions that impact their quality of life, health, education, or financial wellbeing, among others. While acting as an informal advisor provides some level of support, there may come a time when a legally-binding arrangement better serves your loved one’s best interest. 

Securing a legal guardianship to act on a young adult’s behalf involves working through a complicated court process. Common missteps typically cause everyday people to suffer delays, refile cour documents, and even start the process over. Compounding the problems associated with the dense bureaucracy, there are no one-size-fits-all guardianships for young adults. At Lilac City Law, we work with loving families every day to navigate the guardianship process. If you are considering a young adult guardianship, these are things you can anticipate during the process. 

What You Need To Know About Guardianships

Caring people outside the legal professions often believe that securing a legal guardianship is their only option to protect a loved one. This is not necessarily the case. Several alternative options may adequately resolve any concerns or needs. Washington State’s guardianship statutes require other legal pathways to be considered. Moving forward with a young adult guardianship filing could prove a waste of time and resources unless the following items are considered first. 

Education Representative

In Washington State, an automatic Transfer of Rights occurs when a minor turns 18 years old. In instances of minors with disabilities, the school district may notify parents, guardians, and the student before this transfer. It’s not uncommon for loved ones to promptly file for guardianship rights as the age of majority approaches. But retaining rights over a young adult with a disability can have unforeseen negative results. For instance, a guardianship could impact the person’s right to vote, among others. Becoming a legally designated educational representative limits authority and decision-making power. But it also leaves the individual’s other rights intact. 

Payee Representative

Guardianships for young adults tend to deliver broad decision-making powers. But when a loved one only needs assistance in niche areas, becoming a legal representative can have advantages. Representative payees typically field revenue such as Social Security Disability benefits on behalf of the person and oversee their bill-paying obligations. This legal designation limits oversight to financial matters without impacting other rights. 

Power of Attorney

A somewhat broader solution may be gaining a power of attorney. This allows loved ones to make informed decisions on financial, medical, and other essential life issues for the young adult. This designation is typically voluntarily transferred by the young adult.  

Wide-reaching alternatives to a young adult guardianship also include items such as a special needs trust, and vulnerable adult protection orders, among others. In all likelihood, the court will ask to what degree alternatives were considered or pursued before agreeing to a guardianship arrangement. If you have not thoroughly explored these possibilities, your guardianship petition could be rejected. That means the time invested would be wasted as the court sends you back to square one. 

Filing Young Adult Guardianship Paperwork

A young adult guardianship attorney can help decide the most straightforward pathway for protecting your loved one’s best interest. Having an attorney who routinely works through this process, your petition will be strengthened by the fact alternatives have been explored. Articulating the reasons why a guardianship provides the best possible protection and care will help avoid the court denying the petition and forcing you to start all over. 

The time saved by diligently navigating the process can help avoid a gap between when the person turns 18 years old, and the guardianship begins. Although the guardianship tends to be rigorous and requires complicated filings, it can be expedited in a matter of months if no errors or missteps occur. That being said, these are standard documents that are required to be filed with the court, among others. 

  • Petition for Guardianship 
  • Guardian ad Litem Order
  • Notice of Petition 
  • Declaration of Service
  • Order Appointing Guardian
  • Declaration of Proposed Guardian
  • Guardian Oath
  • Mandated Guardianship Training Declaration 
  • Standby Guardian 
  • Guardianship Inventory

Failing to file accurate petitions supported by thorough documentation ranks among the primary reasons why everyday people suffer delays in the young adult guardianship process. Financial concerns often drive the decision to try and negotiate the high legal standards and bureaucracy. Working families are often pleased to discover they may qualify for no-cost court filings and guardian ad litem services. Enlisting the help of an experienced guardianship attorney can save you time, as well as money. 

Common Steps To Secure A Young Adult Guardianship

Although the documentation required to petition the court for a guardianship can be quite stringent, judges understand that a vulnerable community member sometimes needs the support of loved ones. The court proceedings are designed to deliver that support while ensuring the young adult’s best interests are served. 

Commonly acceptable reasons to petition the court include a disabled minor nearing the age of 18, inability to provide self-care, or manage finances. It may also be necessary to intervene when a disabled person suffers from neglect or is being exploited. If you are seeking a young adult guardianship, these are procedural elements you can expect.

  • Guardianship Training: If you are a non-professional or “layperson” in legal jargon, the court will mandate that you undergo guardianship education. Training sessions are generally free of charge and can be conducted online. The coursework typically takes about two hours and outlines a guardian’s duties and responsibilities. The court will require a declaration of completion. You can save time by completing the sessions before petitioning the court. 
  • Petitioning For Guardianship: The paperwork mentioned above will need to be completed and supporting documentation compiled. With the help of your guardianship lawyer, a guardian ad litem candidate may be included. Having a diligently prepared filing can save substantial time and avoid common setbacks.  
  • Court-Appointed Guardian Ad Litem: At the initial court hearing, a guardian ad litem is usually appointed. This certified professional will conduct an independent review and provide the court with a report. You can expect an in-home visit, and additional professionals may be included. It’s not unusual for a social worker to accompany the guardian ad litem. These professionals consider the environment and ask questions to understand whether the proposed guardianship is in the young adult’s best interest. 
  • Guardianship Hearing: During the formal hearing, judges ask specific questions to determine whether a guardianship is in the person’s best interest. It’s not unusual for a judge to bring up alternatives, and your legal representative will need to articulate why the petition before the court is the best option. Parties who are against the guardianship may also speak at the hearing. Your lawyer can cross-examine any opposing parties and making arguments on your behalf. 
  • Letters of Guardianship: Should the court rule in your favor, a formal document will be issued that transfers decision-making powers to the guardian. The letters may also outline certain restrictions.

The young adult guardianship process does not necessarily have a specific timetable assigned to case review and completion. A diligently drafted petition with supporting documentation can save you a significant amount of time. And, having completed to guardianship training in advance helps facilitate the process. Other important time-related issues include being available for the guardian ad litem visit and potential follow-up questions.

Working With An Experienced Guardianship Attorney Saves Time

Although the court system can be challenging to negotiate for everyday people, lawyers who secure vital guardianships for community members have the skills and experience to expedite the process. Along with common pitfalls such as misfiled court papers and inadequate supporting documents, laypeople sometimes don’t indicate the scope of guardianship. Judges may be willing to order a limited guardianship rather than agree to full and unfettered decision-making authority. 

When everyday people try to petition the court on their own, these are the types of issues that get them bogged down. By working with an experienced young adult guardianship law firm, your case can flow through the court system seamlessly. Having a qualified legal professional to answer technical legal questions helps everyday people overcome potential setbacks and keep the process fast-tracked. 

If you have a minor child approaching 18 years old or are considering securing a guardianship for other reasons, Lilac City Law provides determined legal services that support our vulnerable community members. Contact our law office and schedule a young adult guardianship consultation today.


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What is Permanent Guardianship of a Child?

What is Permanent Guardianship of a Child?

When you obtain permanent guardianship of an individual, you are requesting a permanent relationship between you as the guardian and the individual to be created. Permanent guardianships can often not be terminated unless the guardian or courts feel it is best. The term permanent guardianship may also be used when a person wishes to obtain guardianship of someone that is considered to be in the custody of the state, though this type of arrangement can be difficult to secure. There are many U.S. courts that will allow permanent guardianship through the court process if it is deemed in the best interest of the individual. 

Once granted permanent guardianship, the new guardian will have the responsibility of providing for the individual in the same way that a natural guardian is expected to. This includes but is not limited to providing a safe environment for them to live, provide health care, and education if necessary. The guardian will also have the responsibility of making decisions on the person’s behalf medically and financially. 

When May Obtaining Guardianship Be Necessary?

While adults have the legal right to make decisions on their own behalf, if someone becomes incapacitated physically or mentally, they may lack the capacity to make reasonable decisions on their own. In this instance, it may be necessary for a new guardian to be appointed. Another situation where permanent guardianship may be necessary is when there is no one available to take care of an individual who lacks the capacity to care for themselves. Permanent guardianship does not only extended to the physical health and well-being of an individual but also their estate and assets. The guardian is responsible to protect and utilize these assets for the person in a way that is consistent with their wishes and care. 

There are also instances when a guardian should be put in place quickly if the individual’s capacity to make decisions has been lessened. Signs that immediate guardianship is needed include:

  • The Lack of a Power of AttorneyUnfortunately, there are many people who will take advantage of those with limited mental or physical capacities, and if there is no Power of Attorney on file, the result could be dangerous. If you see that your loved one seems as though they may sign anything in front of them, they could benefit from the guidance of a guardian.
  • Property or Assets Need to Be Sold: If you loved one needs to have their assets sold to obtain money for their future, it is advisable for someone to obtain guardianship so that they are not taken advantage of during the process and to ensure that the funds go where they are intended to.
  • Disagreement About Residence: If your loved one is unable to take care of themselves where they are currently living, and accommodations cannot be made to keep them there safely, you may need to contain guardianship to ensure they are in a safe residence that can provide them with the care that they need. 
  • Major Medical Issues: If your loved one is having a difficult time understanding a major medical diagnosis or the treatment that is required, they may need a guardian to make medical decisions on their behalf. Even if they seem capable, it may be advisable as the illness can cause mental capacity to decline or make understanding information more difficult.  

What Process Is Required to Obtain Permanent Guardianship?

While the process for obtaining permanent guardianship will vary from state to state, there are some basic steps that the process is likely to entail no matter the jurisdiction where guardianship is being filed for. 

  1. You will need to file a petition to obtain legal guardianship of the individual and pay any required fees for the process.
  2. You may need to submit to visits, interviews, or background checks from the court if deemed necessary to determine if the action is in the best interest of the individual. 
  3. After all of the paperwork and interview process is completed, the court will need to approve the request, and you will be responsible for signing an oath to uphold the responsibilities that come along with guardianship. 

What Will Your Responsibilities Be After Obtaining Permanent Guardianship? 

Your responsibilities of guardianship will largely have to do with the capacity of the person you are obtaining guardianship over. Some of the responsibilities that may come with guardianship include:

  • Determining a safe place for the person to live
  • Providing monitoring for their living environment and ensuring that it is safe and clean
  • Being available to consent to any necessary medical treatments and procedures
  • Making deiminations on how the person’s finances, benefits, and assets will be allocated and handled
  • Paying any bills the person has 
  • Managing and maintaining any real estate or property that the person has
  • Determining, consenting to, and providing monitoring if there are any non-medical services necessary for the person’s well-being, such as therapy
  • Providing permission for the release of confidential financial and medical information is necessary
  • Maintaining records of all of the person’s expenses
  • Aiding in decisions regarding end of life care and medical intervention
  • Acting on their behalf when dealing with creditors
  • Helping them to perform day-to-day activities and providing them with the resources needed to have as much independence as possible
  • Filing reports annually to the court regarding the guardianship status

While the guardian is responsible for most of the decisions that will affect a person’s life, they should always do their best to seek the input of the individual they have guardianship over, ensuring that their wishes are carried out as well as can be. The guardian should also make sure that their actions align with what was originally authorized by the court. Some guardians may be granted broad authority, while others may be more specified. There are some cases where the guardianship of finances and medical decisions may be split between two people, and in these situations, it is important that the guardian does not overstep these boundaries. 

Who Can Be Named a Permanent Guardian?

Almost anyone can seek out permanent guardianship as long as they are properly suited to fulfill that role. The court will always side with who is best qualified to meet the individual’s specific needs. If the person has already outlined who should be responsible in the event they are capacitated, the court will usually appoint that person as long as they have the capability to perform that job. In some states, the courts may give more preference to immediate family members such as the spouse, children, or other members of the family close to the person since they are most likely to be familiar with the individual’s current abilities as well as their wishes for how they would like things handled. If neither a friend nor a relative is willing or able to be a guardian, a public or professional guardian may be appointed instead. 

Will a Guardian Receive Compensation?

As a guardian appointed by the court, you will be able to receive some type of compensation for services that are provided. When it is a family member or close friend that is appointed, they will typically not charge the individual fo compensation, though they can. If a public or private guardian is appointed then the compensation will be paid from the individual’s estate. To ensure that the compensation is fair and reasonable, it will first need to be approved by the court. The court may ask the guardian to provide a careful accounting of all of the services they provide, including the tasks performed, how much time they took, and any out-of-pocket expenses that were incurred.

Do You Need a Lawyer to File for Permanent Guardianship?

While you can petition the court on your own to obtain permanent guardianship of an individual, the process can be mentally and financially draining. The paperwork and process can be complicated for those not familiar with the legal world, and there can also be certain situations that come up that you will need to address. Because of this, you can make the process significantly easier, less stressful, and more likely to come to your desired outcome, if you obtain an attorney experienced in the process of obtaining legal guardianship. 

Do you have a loved one that needs a guardian, and you are ready to step up and fulfill that role? The experienced team at Lilac City Law can help provide information and assistance.

Contact us today to schedule your consultation. 


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Which is Better? Power of Attorney or Guardianship?

Which is Better? Power of Attorney or Guardianship?

When you have a loved one that needs assistance making major life decisions, whether they are financial or medical, you may find yourself wondering whether or not it is better to obtain a power of attorney or guardianship to help assist them with these matters. Which one will provide you with the best chance to take care of their needs? To make the decisions, you will first need to understand what each one is and how they differ.

Power of Attorney

A POA, or power of attorney is a document that will give a person the power to act on the behalf of another individual. Power of attorney documents can differ greatly, with some providing the agent of the POA with broad legal authority over their life and others, creating the authority to make limited legal decisions, often related to medical care, finance, property, or both. This type of authority is often used in situations where someone becomes ill, disabled, or incapacitated and cannot make decisions on their own behalf. In some situations, a power of attorney can be used when an individual cannot be present for a major financial transaction, such as purchasing a car. 

A power of attorney can is designated by the individual who needs assistance and can end for any number of reasons. The individual who a power of attorney is for can revoke it at any time, or the court can render it invalid. There are also life events that can dissolve a power of attorney, such as the event of a divorce when the spouse was the agent, or in the event the individual passes away. The dissolution of a power of attorney can differ depending on the type of POA obtained as well. In a conventional power of attorney, the document will become invalid once the individual is declared to be incapacitated. If a durable power of attorney has been obtained, then a power of attorney can continue even after incapacitation. 

Power of attorney documents should be considered when planning long-term care or for individuals who may be disabled physically or mentally. When choosing a power of attorney, you will need to determine whether a general power of attorney will be needed or a limited one. Which one you choose can depend on the capacity of the individual the power of attorney is being obtained for. A general power of attorney will allow an individual to act as an agent for all matters allowed by the state and can include selling property, handling bank accounts, signing checks, and making medical decisions. A limited power of attorney will be desirable when an agent is needed for specific matters or events, such as handling property or managing a retirement account. Limited power of attorney is typically only granted for a specified period of time. 


Obtaining guardianship, or conservatorship, is a legal process where a person is awarded the decision-making capacity over an individual who is unable to communicate their decision or lacks the capacity to make sound decisions often due to a mental disability. It can also be awarded if a person is considered to be susceptible to undue influence or fraud. When a guardianship is granted, many rights from the individual are removed, such as their right to manage their finances, medical treatments, and where they choose to live. Because guardianship can significantly limit a person’s rights, it is usually considered a last resort and is not taken by the court system lightly. In order to obtain guardianship, a court will have to strongly feel that the individual cannot make their own decisions, and it is in the best interest of the individual to have someone put in place to make these decisions. While an individual can request a guardian choice before they become incapacitated, the court will have the ultimate decision in who they appoint. They will give weight to an individual’s request as long as that person can perform the guardian function and act in the individual’s best interest. 

How Does a Power of Attorney Differ From Guardianship?

While both a power of attorney and guardianship are designed to provide an agent with the ability to make decisions on your behalf, the primary difference between the two is that you will choose the agent for power of attorney and what actions you want them to take on your behalf, while guardianship is a court-appointed position. The individual receiving guardianship will be able to make all decisions on your behalf, instead of limited ones that may be outlined in a power of attorney. Another difference between the two is the fact that a power of attorney can be dissolved by the individual requesting it, where a guardianship will have to be dissolved by the court. One of the final differences between a POA and a guardianship is that when the court appoints a guardian, they can choose to appoint an independent guardian instead of someone that is related to the individual. 

Determining whether to choose a power of attorney or guardianship will largely have to do with the ability the individual has to make decisions on their behalf. In the event that the individual still has enough of an ability to understand and participate in the decision-making process, they may wish to choose a power of attorney. This will provide them with someone to help them in making decisions but will make them part of the decision-making process. It is also advisable to obtain a durable power of attorney so that the same individual can aid in decisions in the event incapacitation occurs. If an individual has already lost their ability to make confident and safe decisions on their behalf, then a guardianship situation will work best. 

Another important thing to note is that if a durable power of attorney is in effect when someone becomes incapacitated, then a guardianship is not necessary. So if you wish to have a say in who will be appointed your decision making capability in the event you become incapacitated, then having a durable power of attorney in place may be the best course of action. 

Pros and Cons of POAs and Guardianships

There are advantages and disadvantages to both options, and it is important to understand the difference before making any decisions so that it can be ensured that the wants and needs of an individual will be met and in accordance with their wishes. One drawback to a power of attorney is that it will need to be established well before it is needed. Once an individual is deemed to be incapacitated, a durable power of attorney cannot be established. So if a power of attorney has not been established then a guardianship will be needed for decisions to be made on an individual’s behalf. Another possible drawback of utilizing a power of attorney is that it will give the friend or family member who you assign as your agent, significant control over your life.

Choosing a guardianship also comes with some disadvantages as well. The first being that the process involves the courts. The court process can be lengthy, and an agent will not have the power to make decisions on an individual’s behalf until the process is completed. Additionally, the court may decide that the person seeking guardianship is not equipped to act in the individual’s best interest, and someone else may be appointed who was not someone that the individual would originally desire. 

After a guardianship by the court has been established, the court will continue to oversee the process, which can be both a pro and a con. It can be good for the fact that the individual will remain protected at all times, but it can be a con due to the fact that it intrudes into private family matters, With a durable power of attorney their will be no oversight, but an agent can be held in breach of duty, and legal action can be taken if they fail to perform their duties properly. 

Deciding whether to choose a durable power of attorney or guardianship can be a difficult decision, and one that involves weighing the pros and cons of each action. In any event, seeking out knowledgeable legal counsel will help you better understand the process that goes into obtaining each, what responsibilities each require, and which one will be in the best interest of your loved one.

Need help deciding, or are you ready to begin the power of attorney or guardianship paperwork? The professionals at Lilac City Law can help. Contact us today to set an appointment for your consultation. 


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How Important is a Living Will in a COVID19 Emergency?

How Important is a Living Will in a COVID19 Emergency?

The COVID-19 pandemic has completely changed the world as we know it. This virus has already claimed the lives of over 50,000 Americans, and unfortunately, it doesn’t look like the threat is going away any time soon. 

No one ever wants to think about what would happen if we were to become so critically ill that we couldn’t communicate our wishes. However, the possibility of this happening is more real today than ever before. As coronavirus cases continue to mount, doctors, attorneys, and financial advisors are all urging every American to ensure that they have created their essential legal documents, including a living will. 

What is a living will, and why is it so important right now? Here’s what you need to know. 

What is a Living Will?

First things first – a living will is a legal document that explains your personal choices about the procedures and medications you want (or don’t want) when it comes to end-of-life treatment. This document is often the only way for a person to communicate their wishes, as they may be unconscious or under anesthesia when the time to make the decision arises. 

It’s also important to understand what a living will is not. It’s not the same as a medical power of attorney (also known as a healthcare proxy). This is a document gives someone else the power to make medical decisions on your behalf. Many people choose to create both a living will and a healthcare proxy. 

What’s Included in a Living Will?

Your living will should include a summary of your wishes when it comes to the most common types of medical treatments. This often includes:

  • Cardiopulmonary resuscitation (CPR) – resuscitation if your heart stops beating.
  • Mechanical ventilation – intubation if you’re unable to breathe on your own.
  • Antibiotics or antiviral medications – aggressive medical treatment of infections.
  • Dialysis – treatment for kidney failure
  • Tube feeding – nutrition and fluids provided intravenously or through a feeding tube placed in your stomach.
  • Comfort (palliative) care – this can cover a wide array of pain management and comfort interventions at the end of life. Some examples include avoiding invasive tests and treatments and being able to die at home.

For each of the items listed above, your living will should indicate whether you want to receive the treatment, and, for treatments like dialysis and tube feeding, how long you wish for it to continue. 

Your living will may also address whether you want to be an organ or tissue donor and if you would like to donate your body for scientific study after you die. 

When Does a Living Will Go into Effect?

If you have a living will in place, it’s important to make sure that your doctor has a copy so it can become a part of your medical records. If this hasn’t happened, you or someone else can also provide a copy when you arrive at the hospital or at any point up until the decisions have been made. 

For a living will to go into effect you must (1) still be alive, (2) be incapacitated or otherwise unable to communicate, and (3) be in terminal condition (unlikely to recover). It’s also important to note that a living will overrides a medical power of attorney (POA). This means that if the person you’ve designated to make medical decisions on your behalf wants something different from what’s written in your living will, their request will be denied. 

Why a Living Will is So Important During COVID-19

A living will is an important document that everyone should have in place. Accidents and illnesses happen all the time, and having this document in place gives you extra peace of mind. However, during this COVID-19 crisis, it becomes even more critical. Here are a few reasons why. 

The Threat is Very Real

Unfortunately, no one is safe from this virus. There are documented cases in every state in the country, and it can affect people of all ages. Since the virus is often carried by people who don’t have any symptoms, you never know when you could be exposed. 

Many people put off creating important documents like this because they’re young and healthy and don’t see a need for it. Others don’t want to think about the possibility that they could become critically ill and possibly die, so they avoid the topic entirely. However, now is the time to face the fact that this threat is very real. 

It’s well known that COVID-19 causes life-threatening respiratory conditions and extended hospital stays. If you’re infected, there’s a very good chance that your healthcare providers will need to make some of these important decisions. You’ll want them to know your wishes when they do. 

Your Medical Power of Attorney Will Face New Challenges

If you have to go to the hospital for coronavirus treatment, there’s a very good chance that your loved ones won’t get to see you in person again until you’ve either recovered or passed away. Most hospitals are not allowing visitors, which will make it much more difficult for the person you’ve designated in your healthcare proxy to make sound decisions. 

Of course, he or she can be reached over the phone and can make decisions based on the information provided by your medical team. However, without being able to see your condition with their own eyes, each decision becomes that much harder. Having a living will on file gives your physicians the proper guidance and can take some stress off of your loved ones. 

Important Coronavirus Considerations 

If you don’t have a living will and a medical POA, now is the time to get these important documents in place. However, even if you do already have them, you may want to consider having them reviewed in light of a few unique circumstances created by the current coronavirus crisis. 

Communication Issues 

While most healthcare proxies give your medical POA broad authority regarding communication, it’s not a bad idea to add language that explicitly allows medical staff to communicate with your POA over the phone, by email, or through video conferencing. This will help avoid the possibility that problems could arise at a critical moment. 

Intubation Decisions 

The second issue is much more serious, and it involves the use of a ventilator. Many patients with severe cases of COVID-19 end up needing to be intubated. This allows a ventilator to provide your body with oxygen when you’re unable to breathe. 

While your living will may state that you do not wish to be intubated, technically this should only go into effect if you’re considered terminal, that is, if the doctors believe there is very little chance that you’ll recover.

In the case of COVID-19, there’s a possibility that you could go on a ventilator temporarily and then make a recovery. This means that the physicians are now faced with making decisions, hour-by-hour, regarding whether a patient who needs to be intubated actually has a chance of recovering. If the chances are slim, this is considered an invasive procedure and would often fall under the terms of the living will. 

On the other side, there’s the concern that you may not receive a ventilator when, in fact, you would have wanted one. This is particularly concerning in light of conversations about ventilator shortages and speculation that rationing could even come into play. It seems that this concern has passed in the United States at this time, but there’s always a chance it could arise again. 

Considering just how critical this issue is – often literally a matter of life or death – it makes sense to add language into your living will to make your wishes clear specifically in the case of a coronavirus diagnosis. This way, you can be 100 percent sure that your legal document reflects your true intent. 

In addition to ensuring that you’ve created or updated your living will and provided a copy to your physician, it’s also a good idea to talk to your loved ones about your wishes. Although this is an uncomfortable conversation to have, it’s extremely important, especially now. 

Create (or Review) Your Living Will Today!

If you don’t have a living will yet, now is the time to do it. It’s possible to create this document yourself using a form provided by your physician or local hospital or online legal document creation software.

If you choose any of these routes, however, you need to make sure you understand your state’s specific requirements. Some require a witness and/or notary, which could present a challenge during times of social distancing. In this case, however, it’s still better to have a document drawn up than to have nothing at all. Due to the extreme importance of this matter, many people choose to have an attorney draw up their documents instead.

Lilac City Law is here to help you should you decide that you need assistance. Give us a call at 509-624-1610 or complete our online form to schedule a consultation. We’ll answer all of your questions and help ensure you have everything you need to protect yourself during this uncertain time.


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Do I Need a Durable Power of Attorney If I Get Sick with COVID19?

Do I Need a Durable Power of Attorney If I Get Sick with COVID19?

With the COVID19 pandemic sweeping across the globe, you may be wondering as to whether or not you have everything you need in order, in the event you were to become ill. Unfortunately, it often takes extremes for many people to realize they may not have the proper protocols put in place in the event an illness or accident renders them incapable of handling necessary decisions.

What Is a Power of Attorney?

A power of attorney provides another individual with the ability to handle certain issues on your behalf. You can have a power of attorney that puts someone in charge of your financials only, your health care only, legal issues, or one that incorporated all three.

What Is the Main Difference Between a Regular Power of Attorney and a Durable Power of Attorney?

A general power of attorney can handle any legal, financial, or medical matters for you unless you are deemed medical incompetent. Limited powers of attorney can be applied, which will be used only for specific situations, such as making a major purchase on your behalf when you cannot be there. For example, buying a ca. 

The primary difference between a regular power of attorney and a durable power of attorney is when it expires. A durable POA can extend the ability of the person making decisions on your behalf, allowing them to continue to make decisions even if you are deemed incompetent. These can be better for dealing with possible medical emergencies where you may be unable to make reasonable decisions or if you suffer from a cognitive decline. 

General Durable Power of Attorney v. Durable Power of Attorney for Health Care

A general durable power of attorney will grant someone the power to represent your wishes on a wide range of legal and business issues and will remain in effect if you have become incapacitated. You can also set it up to only go into effect in the event that you are incapacitated. The person named can be anyone you designate, and they will have the power to perform many actions on your behalf, such as:

  • Buying and selling a property
  • Managing your bills
  • Handling bank accounts
  • Managing investments
  • Filing tax returns
  • Applying for government benefits

A durable healthcare power of attorney is more often used when you are in some way incapacitated and unable to make decisions regarding your care. When this occurs, the person you have appointed with the healthcare power of attorney will be able to communicate with your doctors and help make medical decisions on your behalf. 

What Happens if You Don’t Have Durable Power of Attorney?

In the event that you become incapacitated and do not have a general power of attorney, your family may be required to go to court and have you declared incompetent before they would be able to take over your medical and financial decisions for you. This makes having one in place extremely beneficial and less stressful for your family. 

How to Name or Remove a Power of Attorney

While there are DIY power of attorney forms out there, it is best to speak with an attorney so that you can ensure that you have the right document filed for your particular situation. They can discuss with you your options and help draft a document that will be in line with what you want to happen in the event you are incapacitated. Once the document is drafted, you will need to provide the person you have designated with certified copies so that they can present them when signing paperwork or making decisions on your behalf. 

If you decide that you no longer want a power of attorney, or you wish to designate another person to have that power, you can revoke a power of attorney at any time as long as you have not been deemed mentally incompetent. You will need to revoke the power in writing and should also notify any financial institutions that may have had the POA on file. 

In the event that a family member wishes to override the power of the attorney of another family member, the situation can be more difficult. There are some cases where loved ones may be afraid that someone with power of attorney over their loved one is abusing that position. In this case, it will take legal action for the person’s position to be removed. 

Should the COVID19 Pandemic Be a Reason to Name a Durable Power of Attorney?

With so many uncertainties and how quickly the virus can be devastating for some, having a durable power of attorney in place in the event you come incapacitated with the virus can be a way to ensure that your needs are met, and your personal business is taken care of in the event you contract the virus. In truth, having a durable power of attorney in place in the event of a major accident or medical injury is a wise move, no matter the current situation, but it may be more at the forefront of your mind when a terrible virus is sweeping across the country. 

Reasons to Have a Durable Power of Attorney in Place During the COVID19 Pandemic

There are many reasons to consider obtaining a durable power of attorney in light of the COVID19 pandemic. With a durable power of attorney in place, you will be able to:

Ensure You Have Someone to Communicate With Your Doctors

While many of the coronavirus cases have mild symptoms, when hospitalization is required, it means the patient can become sick very quickly. When this occurs, it can mean that they may quickly become unable to make informed decisions about their healthcare. Having a durable power of attorney will allow you to have someone who can make split decisions on your treatment on your behalf, even over the phone. This can help allow you to receive quicker treatment, that may be delayed by family members arguing about the best course of action. 

They Can Communicate Your Wishes as to Whether or Not You Want Intubation or a Ventilator

Unfortunately, severe virus cases require breathing intervention to allow the patient to get oxygen as quickly as possible The quickest two ways for this to happen is through intubation and the use of a ventilator. While most doctors will advance with these processes unless they believe there is no hope of recovery, traditional directives can be both interpreted and implemented differently during a time of panic. Medical professionals have to make hard and fast decisions when faced with many patients in respiratory distress, and since the virus is novel, they may be unsure of which cases can result in recovery and which will not. 

To ensure that your wishes are heard, you should have an advanced directive as to whether or not you are willing to go through these invasive procedures in an attempt to recover, and have a person with a durable power of attorney to ensure that those wishes are communicated and followed. You can even address what protocols you would like followed in the event you contract the virus, versus other situations. For example, if you wish to have a ventilator tried but don’t’ want to be intubated and put on life support, add that into your document as well. 

Living Wills DO Not Replace POAs

Many people may confuse a living will with a POA. While these can complement each other, the living will not replace the POA. A living will can provide loved ones with your wishes in the event that you have a terminal condition. It does not cover other types of medical treatment, which can occur when you are capacitated, such as dialysis and blood transfusion. To have someone make decisions on your behalf, you will need to have a durable power of attorney for healthcare decisions. 

Choosing Your Attorney-in-Fact

The person who you designate to hold your power of attorney will be referred to as your attorney-in-fact. This person will have access to your financial accounts, legal information, and medical records, and will be able to make decisions for you regarding one or all of these areas, depending on how your POA is set up. Therefore, when choosing your attorney-in-fact, you will need to make sure it is someone you can trust. You will also want to appoint someone who shares your same views and can keep their emotion out of decisions to ensure that your wishes are appropriately followed. If you choose to, you can also appoint more than one person or a person for each facet, such as one for health care, on for finances, and one for legal matters.

Contact Lilac City Law to Set Up Your Durable Power of Attorney

Everyone has different needs and issues, so finding experienced legal counsel to help you draft your durable power of attorney can ensure that you get the type of document you need that aligns with both your wants and needs. Contact Lilac City Law today to schedule a consultation and put your mind at ease during this time of uncertainty. 


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Should I Nominate a Health Care Agent Today?

Should I Nominate a Health Care Agent Today?

Having a disability can be challenging. Not only will you have to face a number of daily challenges, both mental and physical, but you will also have to deal with a number of legal issues, as you may need assistant making decisions in the future. Challenges that you may face include financial management as well as managing your own health care. Medical assistance is a necessity for everyone, and due to the high levels of privacy and various needs for consent, navigating the health care system can be difficult, These difficulties can be compounded if you face challenges that make it difficult for you to understand the paperwork and make decisions regarding it. That is unless there is someone appointed to make these decisions on your behalf. That is where the duties of a health care agent come into play.

What Is a Health Care Agent?

A health care agent is a person designated to make health care decisions for you. This can be for reasons such as your being too sick or debilitated to make these important decisions for yourself. It could also be that you difficulty making decisions when your mental competence is too low to understand the information set before you so that you can come to an informed decision. 

The agent should understand medical jargon and be willing to liaise with you nurses, doctors, and other medical teams to discuss treatment options while taking into consideration your wants and needs. This way, you will have an advocate in your corner, making sure that your wishes are being closely followed for every aspect of your treatment. 

It is important to note that even though you have assigned a health care agent, you will still have control over your medical decisions. You can have your health care agent work with your medical team, or you may choose to work with them yourself unless it has been decided by doctors that you are not in a condition to communicate your medical decisions properly or if the court has deemed you incompetent for making these types of decisions. 

What Authority Will a Health Care Agent Have?

A health care agent will have the power to make decisions on your behalf in terms of health care, but they will not have decision-making ability in work issues, finances, or any other matters that fall outside of the scope of health care. They also will be restricted from making decisions that go against your expressed instructions and wishes. In most situations, your health care agent will also not have the ability to give consent for certain conditions such as commitment to a mental institution or electroconvulsive type of therapy. 

When designating a health care agent, you can also set limits on what their decisions can entail and also what period of time or specific medical treatments you would want their assistance utilized for. 

What You Should Consider When Appointing a Health Care Agent

Sudden illness and disability can happen in an instant, and if you have a cognitive impairment, it may be difficult for you to make good decisions on medical issues even when you are healthy, let alone when they have become injured or have fallen ill. Since time is of the essence, having a health care agent ready and willing to make those decisions on your behalf can make the process go smoother and ensure that you get treated in the manner that is in accordance with your wants. 

But this is not the only reason to have a health care agent in your corner, willing to fight for your needs. Another primary reason why having a health care agent is critical is, if no one is in place, it can fall to family members to make decisions on your behalf. Even the closest families can become divided when it comes to making medical decisions on behalf of a loved one. With infighting going on in the family, it can take longer for treatment decisions to be made and sometimes even lead to possible legal battles. In the end, the decision that is made may not be what you had wished or intended, even though a family member thought it would be best. For those without close family, important decisions will be left in the hands of family members who may know little about your situation and desired medical decisions. 

How to Choose the Right Person as You Health Care Agent

Since your health care agent will be making medical decisions that can affect your life, it is critical that you choose the right person to represent you in these matters. First and foremost, you will need to choose someone that you can trust. You will be discussing with your agent what you want in terms of your medical decisions and will want to make sure that the person you choose will stick to your wants and best interests. Start with a list of people close to you that you can trust and then ask yourself the following questions about each of them to assist you with making your final decision.

  • Are they willing and able to make the decisions you choose, even if they disagree with them?
  • Do your wants and needs align with their morals?
  • Can they keep their emotions out of the decisions, so that they can make the right choice?
  • Are they strong enough to advocate for you and your wants to medical officials and even family members? 
  • Are they comfortable with medical information so that they can ask the necessary questions needed to make an informed decision?
  • Are they confident enough to stand up to medical staff and get answers and clarification to questions, so they fully understand the situation?
  • Will they be able to make quick and informed decisions even if situations change rapidly?

When you find a person that you trust and your answer to all the above questions is yes, they are likely a good candidate to be your health care agent.

What Type of Person Can Be Selected as a Health Care Agent?

While most commonly, people will look to their family members to choose a health care agent to make medical decisions on their behalf, you don’t have to choose a family member for this position, and sometimes it is not advisable. You may automatically think of family because they love you and you can trust them, but for some family members making hard decisions regarding your health can be difficult fo them, and they may have a lot harder time keeping their emotions and wants out of the decision, sometimes ending in a result that you did not want or intend.

Sometimes it is better to choose someone who may care about you but have less of an emotional connection. Friends are a good option because they do not have to interact with family members on a regular basis, so they may be less likely to be swayed from the decision they know should be made. Some people may opt to choose more than one agent, so there is a collaboration when it comes to decision-making, but this is not always advisable as it can lead to delays in treatment due to disagreements. Another good option may be choosing someone comfortable with medical terminology so they can better understand and communicate with doctors and other medical staff.

How to Finalize Your Health Care Agent Choice

Once you have determined the best person to assist you with your medical decisions, you will need to have some hard conversations where you communicate with them your wishes and desires when it comes to certain medical treatments and concerns. If they agree to represent your interests in the medical decisions you have requested, now it is time to finalize your decision. You will need to officially name them by filling out a health care proxy document. You will need to have witnesses to the document signing, and it is advisable to have it properly notarized in the event a legal issue arises. 

Get Help with Your Health Care Agent Designation

If you or a loved one is disabled and wants to learn more about what goes into designating a health care agent or would like guidance on what it entails and how to file the proper paperwork, Lilac City Law is here to help. Contact us today to schedule your consultation and enjoy the peace of mind or having a health care advocate in your corner for when you need them most. 


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What is the Difference Between Custody and Guardianship?

What is the Difference Between Custody and Guardianship?

Custody and guardianship both allow someone else to care for a minor child. The main difference is how they’re set up. Keep reading to find out more.

What is Custody?

Custody is a family court order that allows someone to care for a minor child. One of the most common uses of custody is in divorce cases where the court will decide if the parents share joint custody, one will have primary custody, or, in rare cases, only one will have custody. A parent may also lose custody in cases of abuse or neglect.

What is Guardianship?

Guardianship comes from the probate court rather than family court. The guardian has similar powers to a parent or another person with custody. Guardianship may be used when both parents pass away or when both parents don’t have the physical or mental capacity to care for their child any longer.

Guardianship can also be used in the case of an adult who due to illness, injury, or disability is unable to care for himself or herself.

What’s the Difference Between Joint and Physical Custody and Guardianship?

Custody arrangements are often divided into physical and legal custody. Physical custody means a parent has the right to spend time with a child such as during visitation periods. Legal custody means a parent has the authority to make decisions over things like healthcare and education. With the trend towards awarding joint custody, most parents share both physical and legal custody, but this may not always be the same.

A guardianship is a legal arrangement, although the guardian often will also take in the child physically. If the guardianship is temporary, such as while a parent is in the hospital or jail, the guardian may be limited to making day-to-day decisions for the child during that time rather than having the same authority for more permanent decisions as a parent or someone with permanent custody would.

How Long Do Custody and Guardianship Arrangements Last?

Custody arrangements usually last until the age of majority. The parents or another interested party may request a modification of custody if there has been a significant change in circumstances.

Guardianships can also be permanent until the age of majority, but they may also be temporary. For example, a parent who is serving overseas or going in for a surgery may appoint a temporary guardian.

Can There Be Both Custody and Guardianship?

In most situations, guardianship is only used when both parents are unable to care for a child. If there is joint custody and something happens to one parent, the other parent will usually take on full custody at least until the other parent recovers. If something happens to both parents or the other parent is temporarily or permanently too far away to take on a greater role, the court may appoint a guardian. If either parent becomes able to take on full custody, the court would usually end the guardianship.

How Do Custody and Guardianship Start?

Custody often starts as one of the decisions a judge makes in a divorce case. The judge has the final say and decides what’s in the best interests of the child. The parents can ask for a certain arrangement, but even if both parents are in complete agreement, the judge may opt for a different course of action.

Custody can also arise out of an abuse or neglect case. Terminating or reducing parental rights is a serious decision, and the court will give anyone who such allegations have been made against the chance to answer the allegations. However, custody cases are not criminal trials, and the judge’s ultimate role is to further the best interests of the child.

Guardianship is also overseen by the court, but the process is slightly different. If a parent who is currently of sound mind and able to care for his or her child needs to appoint a temporary guardian, the court will almost always approve that choice. Parents can also nominate a potential guardian in case they are ever incapacitated. This choice is not automatic, since the court will want to check that the nominated guardian is able to currently serve in the role when needed, but the judge gives the nomination great weight. In cases where someone becomes incapacitated without a nominated guardian, the court will appoint a guardian after listening to the recommendations of family members and other interested parties.

How is Adoption Different Than Guardianship?

Adoption can be similar to permanent guardianship in many practical daily aspects, but there are important legal differences. First, if the parents are still living, adoption permanently ends their parental rights, while guardianship does not. A living parent who appoints a guardian may still have a legal obligation to provide financial support for their child, while an adopted child is the sole responsibility of the adopting parents. Finally, the child doesn’t have any automatic rights to inherit from a guardian but do from adoptive parents the same as a biological child.

Because of the permanence of adoption, it would generally only be part of your estate plan in case you pass away. For situations where there is a chance of recovery, you would want to use a guardianship.

Can Divorced Parents Nominate a Guardian?

Since the courts will default to another parent with custody before a guardian, nominating a guardian when the parents are divorced is more complicated. If both parents can agree to nominate the same guardian, such as a godparent, the court would honor that nomination if something happened to both parents. If each parent nominated a different guardian in their estate planning documents, it would first depend on which parent last had custody. For example, if something happened to the mother, the father took custody, and then something happened to the father, the court would start with the guardian the father nominated. However, both sides of the family would be able to appear in court and ask for a different guardian, and the court would act in the best interests of the child.

What About Grandparents?

In most situations, grandparents don’t have automatic legal rights to care for their grandchildren. This doesn’t mean the children can’t spend a week with grandma and grandpa, but grandparents don’t have the authority to make important legal decisions. If something happened to the parents, schools, doctors, and others couldn’t automatically treat the grandparents as guardians.

Of course, in many families, having the grandparents step in would be best for everyone. Judges understand this and favor awarding custody or guardianship in the right situations. You just need to make the appropriate legal arrangements rather than assuming the grandparents could automatically step in.

How Do You Terminate Custody or Guardianship?

In most custody cases, the more appropriate course of action is to request a modification of custody due to a significant change in circumstances. However, the other parent or another person may petition for termination of custody in cases of abuse or neglect.

Where guardianship is voluntary, such as a parent appointing a temporary guardian while they are away, the parent can terminate the guardianship at virtually any time for virtually any reason. Where the parent is incapacitated, members of the family may petition the court stating why the current guardian isn’t fulfilling his or her duties or why a new guardian would be better for the child.

What Happens if a Guardian Dies?

If a guardian dies or is otherwise unable to fulfill his or her duties, the court will obviously end the guardianship. However, the guardian is not treated as a parent for the purposes of appointing a new guardian. Instead of the guardian nominating a successor guardian, the court will look back to see if the parent nominated an alternate guardian. Otherwise, the judge will again listen to any recommendations from family members in trying to determine the best interests of the child.

Do You Need an Attorney?

It can be a good idea to have an attorney help you to properly establish a guardianship to care for your child should the unthinkable happen to you. To learn more about what you need to do, talk to one of the experienced estate planning attorneys at Lilac City Law. We’re conveniently located in Spokane and serve the surrounding communities.


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What is Permanent Guardianship & Why Does It Matter?

What is Permanent Guardianship & Why Does It Matter?

The importance of selecting a viable guardian early in a child’s life cannot be understated. In the event a parent passes prematurely or becomes unable to deliver the caregiving needs of a minor child, having a responsible and loving family member or trusted friend ready may prove invaluable. Without someone who has the force of law behind them, your child’s future remains uncertain.

A legal guardianship is not an informal agreement between family members and loved ones. While parents can discuss and agree that a sibling or grandparent would do the right thing in the event of a tragedy or setback, the courts hold sway unless you have a binding determined estate plan in place. That’s why it’s imperative to work with an experienced attorney to create legally-binding documents that ensure the health and welfare of your child’s future. That being said, these are elements of permanent guardianship parents would be wise to promptly consider.

Guardians & Parental Rights

People who do not work in the legal system are often surprised to discover that the family court does not necessarily handle guardianships. In most cases, family court judges decide child-rearing issues such as custody, visitation, and support, among others. Generally, probate handles guardianships because they are more closely related to Last Wills and other aspects of estate planning. So, in terms of guardianships coming into conflict with proceedings such as divorce or parental estrangement, cases are often referred to the probate system.

Although the discussion here remains focused on permanent guardianship, there are many instances when parents or the courts designate temporary status. For example, there are times when a child’s parent(s) are unable to provide care, support, or make consistent decisions due to temporary incapacitation. In such instances, they could transfer authority to their designee until they are able to resume parental responsibilities. In such instances, the parent does not necessarily surrender their primary rights.

Opting for a court-approved temporary guardianship should not be taken lightly by parents. When circumstances dictate that a disability, health condition, or addiction crisis renders a parent unsuitable to handle day-to-day caregiving functions, the court may find that it’s in the child’s best interest to terminate parental rights at some juncture. In such instances, guardianships are converted from temporary to permanent even against the parent’s wishes. That’s why it’s crucial to work with an experienced attorney when agreeing to temporary guardianship.

Making A Temporary Guardianship Permanent

Although temporary guardianships are intended to come to a logical end, sometimes circumstances require change. This may be the case when someone takes on the guardianship believing a parent will recovery from their challenge or condition within a reasonable time frame. Tragically, when parents lose their battle with health and wellness matters, permanence and stability tend to be in the child’s best interest. These are common reasons people petition the court for permanent guardianships.

  • The remaining parent passes away due to illness
  • The parent(s) has been incarcerated permanently or beyond the child reaching 18 years old
  • The parent can no longer adequately care for the minor child

When a guardian wishes to change the court-mandated designation to a permanent one, there are procedural steps that must be undertaken. It’s essential to work with an experienced attorney in such matters because the court bureaucracy can be difficult to negotiate, and missteps often prove costly.

Start by scheduling an appointment with an experienced attorney to gain insight about what permanent guardianship entails. Before making this extraordinary commitment, it’s important to understand all the rights and obligations that come with it in order to make an informed decision. If you still wish to proceed, these are legal hurdles that will need to be addressed.

Meet Court Requirements

The court’s responsibility in this process is to always protect the child’s best interests. The desires of well-meaning adults run a distant second. That’s largely why Washington State, and many others, set a stringent standard for permanent guardians. These are items required under Washington State’s Certified Professional Guardianship Program.

  • Must be at least 18 years old
  • Have no felony convictions on your record
  • Have no misdemeanor convictions that involve moral deficiencies
  • Be of sound mind and a person the court deems suitable
  • Demonstrate financial stability and a reasonably good credit rating

Although family members may not be petitioning the court under this specific program, its requirements highlight that you will need to make a persuasive case to a judge.

Gain Parent of Current Caregiver’s Consent

In instances where the parent can no longer raise the child or someone else has a temporary arrangement, a family member or interested third-party can petition to have the temporary order transferred to them and enhanced to a permanent one. One of the ways this pathway can be processed more seamlessly is with the current caregiver’s permission. By securing an affidavit to that effect, the court may be more inclined to grant the petition.

Provide Notice To Interest Parties

Once your attorney has completed your petition and filed with the court, all relevant parties must be notified in a timely fashion. This may include living parents, family members, and pertinent people in the child’s life that may also want to take on the guardian role. Make certain that your attorney has a list of all pertinent family members and potentially interested parties. Failing to complete this procedural step could upend the process or result in civil litigation brought by a family member or person with standing.

Your Day In Court

The fundamental question the judge considers when making someone a permanent or temporary guardian for that matter is whether the legal designation serves the child’s best interest. The judge will weigh a wide range of facts in reaching a conclusion. These may include the following.

  • Emotional bonds between the child and potential caregivers
  • Ability to provide necessities such as a safe, stable home, food, and medical care
  • Financial stability of the guardian candidate
  • Educational background and employment history
  • Issues involving previous alcohol or substance abuse
  • Mental and emotional fitness of the prospective guardian

You can anticipate answering pointed questions asked by the judge or any parties who oppose or have an interest in the petition. Securing permanent status can be something of an uphill battle when competing interests come into play.

What Parents Should Consider When Choosing A Permanent Guardian

In many cases, permanent guardianships are established by parents through estate planning documents. Parents who take such proactive measures understand that they are ensuring their child will be in good hands should they die prematurely or be otherwise unable to provide adequate care.

Ranked among the most significant challenges parents face is making an informed decision about whom to nominate. But by taking time to think through the process and weigh your options, you will be able to select the best possible candidate. These are things to consider.  

  • Consider Your Core Values: Although you may be immersed in a loving family, child-rearing remains deeply personal. Parents, siblings, and other loved ones may or may not share your core values. Take an inventory about issues such as religion, political perspectives, education, integrity, and other things that truly matter. Then, see who best mirrors your core values and would make a suitable guardian if necessary.
  • Multiple Guardian Option: While it may be somewhat uncommon, there are times when the designated guardian becomes unable or unwilling to fulfill the duty. That’s why it’s in the parents’ best interest to include an alternative in your estate planning documents.
  • Financial Stability: We live in a world in which financial security matters. A guardian who manages money well may be more likely to sustain a healthy and secure home life for your child. This person may also be asked to manage any assets to support the minor or work cooperatively with your estate’s trustee.
  • Speak To Your Family: Having an open and honest discussion about your desire to enlist a family member or loved one as a potential guardian must be treated with care and compassion. Take the time to explain your reasoning in a way that does not slight or otherwise make people feel less than adequate. You are basing the decision on what you perceive as an upbringing most closely aligned with your wishes. It may be worthwhile that while you respect others’ values and abilities, there are specific reasons for your choice.

Once you have reached an agreement with a guardian candidate, it’s vital to follow through with an attorney and make the designation legally binding.

Work With An Experienced Permanent Guardian Attorney

One of the most proactive measures to ensure that your child will grow up in a safe and healthy environment if something happens to you is designating a guardian in your estate planning documents. Giving the right person the ability to make essential life decisions allows you to provide care and comfort, even in your absence. If you have not yet designated a legal guardian or would like to update an existing plan, contact Lilac City Law today.  


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