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 a Ward of the Court?

What is a Ward of the Court?

People essentially become wards of the court because they are unable to take care of themselves at some level and require certain legal protections.

This legal designation is also commonly called being a “ward of the state” and may apply to minors as well as adults. It’s also important to understand that a ward is not necessarily someone who has no family or support system within the community. Rather, they may require enhanced protections beyond what a legal guardian or family can provide. Other salient issues involve otherwise responsible legal guardians not wanting to bear the sometimes onerous financial burden associated with minor children or adults who unable to maintain self-care.

To say that the process and issues involving wards of the court are complicated would be something of an understatement. In an effort to provide loved ones with a working understanding of what it means to be a ward of the court, we hope the following overview proves useful.

How Does One Become an Adult Ward of the Court?

As we are acutely aware, not all adults have the ability to care for themselves adequately. Whether that stems from a disability, age, or illness, the courts can provide enhanced protections to ensure ongoing treatment, care, and financial oversight, among other items.

An adult ward of the court may have no remaining family members to step up as a legal guardian. Others may indeed have loved ones that are willing to act as their guardian but are not necessarily in a position to shoulder burdens such as financial support as well as caregiving. Still, other wards have court-appointed guardians connected with government agencies. These professional organizations may include the following.

  • Social Services
  • Human Services
  • Mental Health Agencies
  • Health Departments
  • Departments for Aging Adults

In order to become an adult ward of the court, that person must undergo a review process that may include assessments by medical and psychiatric professionals who support a claim the person is not competent to successfully maintain minimum health, safety, and financial standards. In the vast majority of cases, the courts will hold a hearing and secure written and oral testimony from experts, friends, and family members, among others. If deemed incompetent, the individual may enjoy the legal protections afforded by the court.

It’s also important to keep in mind that the courts do not necessarily impose guardianships. People who recognize they are seeing the signs of diminished capacity to maintain their health, well-being, and estates, can work with an attorney to voluntarily petition the court. In these instances, the potential ward of the court can have substantial input about the parameters of the guardianship and who the court appoints to that station.

In other cases, a friend or family member can petition the court on someone’s behalf, even in cases of involuntary guardianships. These cases can be emotionally taxing for family members, particularly when your loved one does not recognize their failing state. In these involuntary cases, the ward generally has little or no input about issues such as oversight of their well-being or the designated guardian. The court imposes what it believes is in the best interest of the ward.

What Does an Adult Guardian Do?

A court-appointed guardian is often tasked with overseeing healthcare and financial planning decisions. It’s not uncommon for the guardian to work closely with the ward through the process and move forward with the person’s full consent. These are common items a guardian works with the ward.  

  • Place of Residency
  • Mental Health Treatments
  • Physical Health Treatments
  • Bill Payments
  • Personal Affairs
  • Estate Planning
  • Last Will & Testament

If the ward has significant financial resources, the court may also appoint a conservator with some expertise to manage their estate. The guardian, on the other hand, advocates on behalf of the ward’s best interest in all other matters and generally submits periodic reports to the court.

How Long Can an Adult Remain a Ward of the Court?

Once a person has been deemed a ward of the court, that legal designation is usually only removed in the event they are no longer hindered. In some instances, the court may dismiss the guardianship because it’s in the person’s best interest. Although the latter tends not to be the norm, people who have recovered from a physical or mental health condition may see the ward designation lifted, and the guardianship discontinued. In the overwhelming majority of cases, wards of the court remain so until they pass away.

When Does A Minor Child Become A Ward of the Court?

When children are deemed wards of the court, the circumstances and prevailing issues can be quite different. For example, when the court appoints a legal guardian, it is more often not the case that they become financially responsible for support. In these cases, guardians are also not generally liable for other expenses associated with the child. However, when children become wards of the court, parental rights are usually terminated.

This is an important distinction for minors and parents alike to understand. That’s because there are instances when the court may assume authority over the child even though the minor remains in the custody of a parent. In this scenario, the court has asserted some degree of authority but has not yet gone as far as to remove parental oversight. In such cases, minors are not necessarily a legal ward of the court.

That same reasoning holds true in cases when minors work with an attorney to successfully petition the court to be declared emancipated. Although such minors are no longer under the legal control or protection of a parent or guardian, they are not automatically under the court’s protection either. Therefore, they do not meet the legal standard of a ward of the court.

Another compelling situation is when minors commit crimes and are incarcerated. The mere fact that the state has assumed control and placed the child in a correctional facility does not necessarily make them a ward of the court. As long as a parent or appointed guardian is in place, the minor may not be considered a ward.  

What Triggers A Minor Becoming a Ward of the Court?

Like the adult process, there are a number of ways that a child can go from being the responsibility of a parent to a ward of the court. Sadly, ranked among the more prevalent pathways, the court places children under its protection when they are neglected, abused, or otherwise mistreated. We hear and read about many extreme cases in the media of children being subjected to squalor, malnutrition, and other horrors. The legal protections of the court are often inserted until the children can be treated, and a suitable living environment can be secured.

In other cases, the court may proactively take control over wayward youths. It’s not unusual for a minor with a growing criminal record, history of drug and alcohol abuse, or mental health issues to be removed from a parent’s custody. Wards may be placed in institutional settings that include rehabilitative programs. The court’s goal in cases of wayward youths is to redirect negative behaviors and integrate them as productive members of the community.

There are also cases when parents are physically or mentally unable to provide the stable homelife a child requires. Whether that evolves from diminished physical health or an emerging mental condition, parents have the option to work with an attorney and petition the court to place their child under its protection. Parents are often required to sign over custody in voluntary petitions. In these types of cases, parents can have significant input regarding placement and the future well-being of their child. It’s also not unusual for parents to regain their capacity to care for a child and ask the court to reinstate their rights.

Protect Your Loved One’s Rights & Interests

If you or a loved one is facing the possibility of becoming a ward of the court, or you fear for how guardianship will transpire in a known or unknown future scenario, it’s imperative that you engage the best legal counsel possible. The legal hurdles, hearings, and documentation required to negotiate the process tend to be highly complicated. And, missteps can cause unexpected setbacks and a less than desirable result. Whether you are considering an adult wardship, or want to protect a minor child’s future, Lilac City Law has the experience and compassion to diligently guide you through the process and get the outcome you deserve.

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What to Know During the Guardianship Nomination Process

What to Know During the Guardianship Nomination Process

If something happened to you and you were unable to take care of yourself or your children, who would step in? Ideally, it would be someone you chose. Nominating a guardian before something happens allows you to do just that.

What Is a Guardian?

Think back to school forms asking for a parent or legal guardian. A guardian is a person who takes care of someone else when that person is incompetent to handle their affairs on their own. This could be due to a serious injury or illness. When minor children are involved, they may need a guardian if both of their parents are incapacitated or pass away.

A guardianship will generally cover similar decisions to what a parent could make for a child — even when the person needing a guardian is an adult. This may include medical decisions and, for minors, other life decisions such as where to go to school.

Guardianships can also cover managing the person’s finances, but finances are sometimes broken up into a separate conservatorship. Exactly what a guardian or conservator can do will be spelled out when the court approves the guardianship or conservatorship.

How Is a Guardian Different From Godparents?

When your children were born or shortly after, you may have appointed godparents. Godparents are often expected to step in and take charge of the children if something happens to a parent, but appointing a godparent is largely a religious or ceremonial action. Godparents aren’t directly recognized under the law.

To give a godparent the legal authority to act, and avoid conflicts with other family members who may wish to step in instead, you will need to go through the legal process of appointing the godparents as guardians, trustees, or other legal roles.

How Is a Guardian Different from a Power of Attorney?

A power of attorney might grant all of the powers that a guardian can exercise. The difference is mainly timing. You sign a power of attorney when you have full mental capacity. A guardian is only appointed after you’re incapacitated. Part of the guardianship appointment process can include reviewing the wishes you specified when you still had full mental capacity. However, a power of attorney cannot be executed if you have diminished mental capacity, and it may be voided if a court finds you lacked capacity when you signed it.

Because a power of attorney can be limited in scope based on how you had your lawyer word it, it may not cover all of the actions that need to be taken on your behalf. In those situations, a guardian would be appointed to fill in the gaps.

How Do You Select a Guardian for Yourself?

Like a person dying without a complete will, the law has default rules for how to select a guardian based on relationships and willingness to serve. The court will also consider the ability to do the job of each person who wants to be the guardian. This can lead to serious family conflicts and large legal bills when two family members wish to serve as the guardian and can’t come to an agreement.

To avoid these types of problems, you can nominate a guardian. The judge isn’t bound to follow your nomination but will give it great weight and will only overrule your nomination with a strong cause. The process is called nomination of guardian, and you can select any adult of sound mind. Like a will, the judge will review your selection to ensure you were mentally fit to make the decision and weren’t under duress or tricked into doing so.

How Do You Select a Guardian for Your Children?

The process for nominating a guardian for your children is similar to nominating a guardian for yourself. The only real difference is that it’s even more important to make your decision in advance so that your children can have a sense of stability and not be left hanging during long court battles.

You should, of course, also talk to potential guardians to see if they are willing to take on this responsibility. However, being nominated does not obligate the person to accept the judge’s appointment if the time ever comes. Therefore, you probably want to select at least one alternate.

Do You Need a Guardian If You Left a Trust for Your Children?

You may have set up a trust to provide for your children financially in case something happened to you. The trustee is then able to manage their financial affairs in accordance with the trust.

However, someone still needs to take custody of the children to manage their daily lives and important life decisions. This is where you need to nominate a guardian, and your estate planning documents should lay out the responsibilities of both the trustee and the guardian.

Who Supervises a Guardian?

Once appointed, a guardian must make regular reports to the court. This includes financial information as well as other major decisions. Other family members can also go to court to contest the guardianship if they believe the guardian is doing something improper.

What If There Is a Conflict Between a Guardianship and a Power of Attorney or Trust?

There should be no conflicts with a guardianship and power of attorney or trust because the court should appoint the guardian in consideration of other estate planning documents. The guardian should only carry out duties not already provided for. To avoid confusion, you should attach your other estate planning documents to your nomination of guardianship to ensure that the judge will be aware of their existence. If a power of attorney or trustee believes a guardian was appointed improperly or is going beyond their role, they can contest those actions in court.

Are There Downsides to Being a Guardian?

Whether a guardianship is for an adult or minor children, being appointed as a guardian is a major responsibility. Like a parent, it can mean making tough choices and sometimes needing to put the other person’s wellbeing before the guardian’s own. The nominated guardian will also need to go to court during the nomination process and will need to make ongoing reports to the court as long as they remain guardian. Being a guardian is a lifetime appointment unless the judge appoints someone else.

Does a Guardian Have to be Local?

A guardian can theoretically live anywhere in the world. However, the judge will want to make sure that the guardian will be able to effectively perform their responsibilities without being unduly impacted by long-distance. For minor children, since they will often go to live with the guardian, the judge may also consider how a move would impact their lives and their access to other family members. You can and should include your wishes on these issues in your planning documents so the judge can understand the choices you made and to avoid conflicts between family members.

If you’re relying on a long-distance guardian, you should also consider who will act in a sudden emergency such as you being rushed to a hospital. You may want to have an alternate power of attorney that gives a more nearby family member the power to act until your guardian is able to step in.

Who Pays for Legal Fees During Guardianship Proceedings?

Your appointed guardian should understand that they don’t have to take on legal costs. If you have liquid assets, the court will pay the attorneys reasonable fees from your funds — just like any other of your expenses would be handled. If you don’t have liquid assets, there is a special guardianship fund established by the government. In no cases does the appointed guardian pay for court fees, although you may wish to set aside money to cover other expenses they may face while acting as a guardian.

Please note that this is separate from creating your nomination of guardian documents. Those costs would be arranged between you and your attorney just like any other legal work.

How Quickly Can a Guardian Be Appointed?

Even for a nominated guardian who isn’t contested, the court process is usually measured in weeks if not months. During an emergency situation, your family could petition the court to appoint a temporary guardian pending full court review. This person could potentially be the guardian you nominated.

In more urgent circumstances, such as an emergency room doctor needing an immediate decision, any power of attorney or living will documents that you created and are readily available will be used. Otherwise, the hospital or other entity would attempt to contact your next of kin and follow their authority in accordance with local law.

Talk to an Experienced Estate Planning Attorney

To learn more about how nominating a guardian fits in with your estate planning strategy or to start the nomination process, talk to an experienced estate planning attorney at Lilac City Law today.

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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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