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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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 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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