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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How Should I Plan for Temporary Guardianship in My Family Protection Plan?

How Should I Plan for Temporary Guardianship in My Family Protection Plan?

A temporary guardian assumes the role of a guardian for a limited amount of time. You may need sudden medical care, or if you’re no longer able to care for your children, you may need someone to step in while the permanent guardian prepares to take on their role. To ensure that everything goes smoothly, you should have a plan for this in your planning documents.

What is a Guardian?

A guardian is a person that makes important financial, medical, and other decisions for another. An adult may need a guardian if an illness or injury renders them unable to care for their own affairs either temporarily or permanently. A child may need a guardian if something happens to their parents so that the parents aren’t able to care for the child.

What is a Temporary Guardian?

Unlike many guardianships, which are indefinite, a temporary guardianship lasts for a specific amount of time or until a certain condition is met. Once the temporary guardianship ends, a permanent guardian takes over if one was nominated, other provisions of your estate plan take effect, or your family and a court reach a decision.

Here are some scenarios where a temporary guardian may come into play.

  • You live far away from family including who you would want to be your primary guardian. In the event of a sudden illness or accident, you designate a close friend to handle your affairs until your family member is able to arrive and take over.
  • You need a substitute in case your selected guardian has a change in circumstances that makes them temporarily or permanently unable to fulfill their duties.
  • You are a military spouse and need someone to take over if something happens to you while your spouse is deployed until your spouse can return home.
  • A sudden emergency makes it impossible for you to complete the full guardian nomination process in time.

What Happens at the End of a Temporary Guardianship?

A temporary guardianship only has legal effect for the designated time or until the specified condition is met. At the end of temporary guardianship, it would be as if you didn’t have a guardian at all. If you have the mental capacity to do so, you can extend the guardianship. If you do not have mental capacity and have no other plan in place, the court may consider what the temporary guardian has done so far when deciding on a permanent guardian, but the fact that they were your temporary guardian is not a deciding factor in selecting the permanent guardian.

What is an Informal Guardianship?

You may sometimes hear a temporary guardianship referred to as an informal guardianship. This is because the temporary guardianship may be set up outside of the courts. Often, the informal guardianship is set out in a notarized letter. This is not as strong as a power of attorney or full guardianship but can still be useful in certain situations. One of the most common uses is when a child will be going to live with a relative for a while and the parent will still be able to address any concerns that arise while the relative assumes primary care.

What is a Testamentary Guardianship?

A testamentary guardianship is a guardianship listed in a parent’s will. This is another type of informal guardianship.

It is not possible to legally leave a child to another relative in a will even when well-intentioned and the whole family agrees. The job of a will is to answer questions about property distribution.

What a testamentary guardianship does is simply to make the wishes of the parent known. Courts will usually honor these wishes on a temporary basis if the family is in agreement, but the full guardianship process will need to happen before the guardian becomes permanent.

What is an Emergency Guardianship?

Some people may refer to the temporary guardianship they’ve set up as an emergency guardianship, but an emergency guardianship usually means a temporary guardian appointed by the court. Courts usually appoint emergency guardians when someone has a serious accident or illness and needs a guardian but never nominated one. The court appoints the emergency guardian for a limited period of time to handle the emergency while the regular guardianship process plays out.

What is a Limited Guardianship?

A limited guardianship means the guardian has limited powers. For example, you may wish to appoint a guardian to make medical decisions and a separate conservator for financial decisions. A limited guardianship can either be temporary or permanent.

Do I Need a Temporary Guardianship if I Have a Permanent Guardian?

Even if you’ve nominated a permanent guardian, the court still needs to formally approve the guardianship before it can take effect. Designating the same person to act as your temporary guardian can avoid any ambiguity about what should happen while that process plays out. In addition, you may still need a backup temporary guardian in case the permanent guardian can’t immediately step in.

Do Grandparents or Other Relatives Automatically Become Guardians of Minor Children?

Grandparents or other relatives do not automatically become guardians of minor children if something happens to the parents. They can generally take the children in temporarily as long as there are no objections from the rest of the family, but their authority to make decisions regarding school, doctors, etc. would be limited to emergency decisions only. In addition, any disputes between family members about what should happen could be disruptive to the children’s lives during an already difficult time.

What if the Parents are Divorced?

A temporary guardianship or other arrangements can’t override the other parent’s parental rights. Generally, both parents would need to agree to a temporary guardianship. For example, both parents may want to jointly make a plan in case something were to happen to both of them.

Otherwise, courts would generally look to one parent to take over if something happened to another. For example, if two divorced parents with joint custody lived in the same town and one was hospitalized, the child would usually go to live with the other parent rather than a temporary guardian appointed by the one in the hospital. If they lived far apart, a temporary guardian might come into play while travel and other arrangements are made.

Should Children Know About Temporary Guardianship Plans?

Depending on their age and maturity, it can be a good idea to let children know your plans for a family member to take care of you and/or them if something were to happen. This allows you to gain their input and can also ease fears they have about being orphaned that you may not even be aware of.

What is a Temporary Guardian’s Financial Responsibility?

You generally maintain financial responsibility for yourself and your dependent children even when you’re incapacitated. The temporary guardian may have the right to use your funds to further your and your child’s interests. This would be subject to any financial planning documents you have in place.

To make this process easy and avoid burdening the guardian, you should account for this in your planning documents. You may wish to set aside specific funds or make sure your guardian will have access to your checking and savings accounts.

Can a Temporary Guardianship Be Terminated Early?

If you have sufficient mental capacity to do so, you can terminate a temporary guardianship you established for any reason. A family member or other interested person may also petition a court to end a temporary guardianship. They may believe that you were not of sound mind when you established the guardianship or that the guardian isn’t fulfilling their duties. The court would then make a decision that it believes is in the best interest of you and/or your children.

Do I Need a Lawyer for a Temporary Guardianship?

Even though you can set up an informal guardianship on your own, working with a lawyer helps make sure everything is in the proper form so that it can take legal effect. Your attorney can also help you build in the necessary financial and other arrangements into your family protection plan. To learn more, contact Lilac City Law today.

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What Guardianship Forms Do I Need To Protect My Children?

What Guardianship Forms Do I Need To Protect My Children?

Anyone with a child should have an estate plan.

 A fundamental part of your estate planning is setting up the appropriate guardianship forms should something happen to you.

Unfortunately, many people do not have an estate plan or guardianship plans because they either have not thought about it or they are unsure how to start.

In this article, we will discuss how to make sure your kids are protected, and the forms you’ll need to think about to establish this plan.

A Will

A last will and testament can be the most important form you can have in your estate plan.

Your will is not only the place for you to outline what happens to your property after you die, it is also where you might name a guardian for your children (or pets), identify someone to handle your property after death on behalf of your children, and identify an executor to manage your property from the time you die until your estate is settled.

A will falls under the umbrella of guardianship forms because whoever you name in your will, will become your children’s permanent guardian after you die.

If you do not name someone, then either a judge (who likely does not know you or your family) will choose who they think will be best, or someone will have to petition the family court to become your children’s guardian.

If you want a specific person to raise your children after you die, then you need to have a will.

To find out how to choose the best guardian for your children, click here.

Temporary Guardianship

Naming a temporary guardian for your children is not something most people think about.  This is especially true if they have already named a permanent guardian.  But there is a good reason to get a temporary guardianship setup.  For instance,  if there is an emergency and your permanent guardian cannot get to your children right away, then your children will go into the state’s care until your permanent guardian can get to them.  This is just adding trauma to trauma – in an already uncomfortable situation for them!

Having a temporary guardian set up will help reduce the stress and anxiety the children may already be going through.  They will be more comfortable with someone they know and trust.  And they can start working towards their new sense of normalcy.

Setting up a temporary guardian is also important if you are going out of town or the country.  Setting up a temporary guardianship will allow your children’s caretaker to make school decisions and medical decisions if needed.

To read more about temporary guardianship, click here.

Letter of Instruction

One more guardianship form that gets overlooked is a letter of instruction.

This is the place where you explain your hopes and expectations for how your children are raised.  These include decisions about your children’s education, activities, and religion.  Be sure to update this letter as your children grow and their interests and needs change.  Also, make sure you share and discuss this letter with your chosen guardian(s) so there are no surprises.

These are the three most important guardianship forms to have for your estate plan to protect your children.  You can read our article What Legal Documents Do I Need for my Estate Plan? to learn more about what other documents you need to have in your estate plan to protect your children and family.

I Need Help Setting Up Guardianship Documents For My Family
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Why You Need to Consider Options for Temporary Guardianship for Your Children

Why You Need to Consider Options for Temporary Guardianship for Your Children

As a parent, the last thing you want to think is not being around for your children.  Not being there to make decisions for them, and not being there to take care of them.

Unfortunately, accidents do happen and if the worst case were to happen to your family, there is little doubt that you would want to make sure someone you trust is around and able to care for your children!  You need to start considering a temporary guardianship for your children.

Three Reasons You Need to Consider Temporary Guardianship

Incapacitation: If you become incapacitated and unable to care for your children, you want to have someone you trust to make decisions for them.

Substitution: If you need to be out of town and away for your children for any reason, you want to have someone there to care for your children.

Emergency:  If there is an emergency that causes you unable to care for your children and there was no time to appoint a permanent guardian, then a temporary guardian will be appointed.   This is also known as an emergency guardian.  If you have not specifically set up a temporary guardian for your children, they could end up temporarily in the care of strangers, or family members that you would not want them with. 

Role of a Temporary Guardian

In a temporary guardianship, the person named:

  • Has legal custody of the child or children
  • Has the right to make any medical decisions for the child or children
  • Has the right to make any educational decisions for the child or children
  • Has the right to make any financial decisions for the child or children
  • Is legally responsible for the child or children

Length of Time a Temporary Guardianship Lasts

A temporary guardianship typically lasts up to 60 days.  State statutes will set the time period if it is a court-ordered guardianship.  The length can vary depending on each case.

If the temporary guardianship is set up in a document such as a living will or through a power of attorney, then it will last for the amount of time outlined in the document.  The amount of time should be reasonable and realistic in case of any changes.

A temporary guardianship only lasts until its purpose is fulfilled.  For example, if you appoint a temporary guardian for your children while you are on a business trip, then when you return, the temporary guardianship will end.

How to Arrange a Temporary Guardianship

There are a few ways to arrange a temporary guardianship for your children.  Each one depends on the reason you need to set one up.

  • Living Will or Power of Attorney: If you are setting up a temporary guardianship to become effective if you become incapacitated or deceased, you want to name the guardian in your living will or on your power of attorney form. This person will be the guardian of your children until you are no longer incapacitated or until a permanent guardian is named.  You may also put a period for which you want a temporary guardianship in place.
  • While you are out of town: If you need to set up temporary guardianship because you will be out of the state or country, you can name a guardian to care for your children in your absence. This can be done simply by writing a guardianship letter or filling out a guardianship form.  In the letter you want to be sure to include the name of the guardian, the reason they are the guardian, the dates the temporary guardianship is in effect, and what decisions the guardian is allowed to make for your children.

Rember to chose someone you trust.  This person will be making important decisions for your children when you cannot.  Choosing a guardian is an important decision and you need to discuss the responsibilities with whomever you choose.


Talk to us Today about a Temporary Guardianship

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Do I Need to Setup a Temporary Guardianship Form for My Children?

Do I Need to Setup a Temporary Guardianship Form for My Children?

Temporary Guardianship is a concept in family protection & estate planning that you should become aware of.  

This is the idea that whether you are away on vacation, or even if you pass away, you want to designate someone you trust with having guardianship over your children.  

Obviously, vacation is a lot less permanent than death; however, regardless of how your children might come to need temporary guardianship, you need to be aware of what it is and how to use it in a complete family protection plan. 

Temporary Guardianship: What is it?

Temporary guardianship is when you appoint a guardian to take care of your children and make decisions for them temporarily.  The person you choose should be someone you trust because they will be making financial, medical, educational, and day to day decisions for your children. You can read here for more information on how to choose a guardian for your children.

There are three main reasons you may set up a temporary guardian.

  1. In case you become incapacitated.
  2. You are out of the state or the country for leisure or business.
  3. There is an emergency that causes you be unable to care for your children.

The length of the temporary guardianship is dependent on the purpose and reason for it.  If a court has to name a temporary guardian, then it will be for up to 60 days unless circumstances change or a permanent guardian is appointed.  If you name a temporary guardian in your living will, then the guardianship will last for the amount of time you choose and put on your document.  If you are incapacitated, or there is an emergency, then the temporary guardianship will last until you can care for your children again.


Talk to A Guardianship Attorney Today 

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When You Need a Temporary Guardianship Form

Most states require you to fill out a temporary guardianship form and have it notarized.  Depending on the state you may only need to keep the notarized copy on hand, or you may have to file it with the city, county, or state.

The temporary guardianship begins on the day you sign it and expires six months after unless you state an earlier date on the form.   If you need the guardianship to last longer than six months, you will need to fill out another form after the initial six months are over.

If your child is over fourteen years old, then they will also need to sign the form.

A temporary guardianship form is not needed if you name a temporary guardian in your living will.  The living will is a legal form and can take the place of a temporary guardianship form.

If you need a temporary guardian while you are away, you can write a temporary guardian letter.  Reasons you may be gone are business trips, military deployment, or medical procedure.  It is important that your letter includes the following:

  • Reason for the letter
  • Addressed to the guardian
  • Children’s full names
  • Exact dates for the guardianship
  • Details about what the guardian can and cannot do
  • Specific permission for medical treatments, school trips, and any other activities
  • Where and how the parents can be contacted
  • Doctor and dentist contact information

It is recommended to give any of your childrens’ schools or healthcare providers a copy of the letter.  If you do not do this, then the person you are granting temporary guardianship to needs to make sure they take their copy with them.

If you have any questions about setting up a temporary guardianship form or letter, you can contact our office.