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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What is a Guardian Ad Litem?

What is a Guardian Ad Litem?

A guardian ad litem represents the best interests of a child in court. A guardian ad litem can also represent an adult who is incapacitated or has diminished mental capacity.

What’s the Difference Between a Guardian ad Litem and an Attorney?

A guardian ad litem does not perform the same tasks as an attorney. They may make recommendations to the judge or investigate certain facts at the request of the judge, but they don’t argue on behalf of the person they’re representing in the same way as an attorney. In some cases, the guardian ad litem may represent someone who isn’t a named party in the case, such as a child in a divorce proceeding.

When is a Guardian Ad Litem Used?

A guardian ad litem may be used in several different types of cases.

  • Divorce or custody proceedings to represent any children.
  • Child abuse investigations.
  • Foster care or removal cases.
  • Determining whether an adult has full mental capacity.

What Does a Guardian Ad Litem Do?

The guardian ad litem works for the interests of a specific person, but their true role is to work for the judge rather than directly for that person. The judge may ask them to find out certain facts, to monitor certain activities, and to present a report in court. Exactly what the judge asks of the guardian ad litem depends on the case.

Does the Guardian Ad Litem Make any Decisions?

The guardian ad litem makes no legally binding decisions. Through their investigation and experience, they may come to a certain conclusion about what they think should happen. However, the judge retains the final authority to overrule them or request additional information in areas the guardian ad litem may not have considered.

What Does Ad Litem Mean?

Ad litem is Latin for “for the purposes of the suit.” The appointed person takes on the role of the guardian but only for the specific purposes being discussed in court and only for as much time as it takes to resolve the court case.

What Does a Guardian Ad Litem Do for Your Children in Estate Planning?

If something happens to you, a guardian ad litem can play several roles for your children in executing your estate plan. One duty is to monitor the probate process and ensure that your child receives what you intended in a way that benefits him or her. A guardian ad litem can also help your child through any guardianship proceedings including both making sure your stated wishes are honored and helping the court gain an objective view of what’s best in situations you may not have considered.

What Does a Guardian Ad Litem Do for an Incapacitated Adult?

A guardian ad litem speaks on behalf of an incapacitated adult in any court proceedings necessary to execute his or her estate plan. The guardian ad litem can also serve as a go-between between the court and medical professionals to help the court of a neutral understanding of what doctors are recommending without having to call the doctors to testify in court.

How Does a Guardian Ad Litem Receive Compensation?

Guardian ad litems are paid by the parties receiving the benefit of their services. In a family court case, the parents may split the cost. In an estate administration case, the guardian ad litem may be paid out of the estate. In an incapacitation case, the guardian ad litem may be paid out of the incapacitated person’s assets.

Who Picks the Guardian Ad Litem?

The court appoints a guardian ad litem from a list of qualified individuals. It’s possible to nominate a guardian ad litem, but they need to be court-approved.

What Does it Take to Become a Guardian Ad Litem?

A guardian ad litem must complete a training course sponsored by the court. They also need several years of experience in social work, dealing with children or the elderly, dealing with people with disabilities, or in related fields.

Do You Want to Have a Guardian Ad Litem?

A guardian ad litem can be a useful advocate in certain court proceedings. However, you may be worried about the cost or whether the guardian ad litem would really be able to follow your wishes. The key thing to remember is that guardian ad litems do the most in contested court cases. If you can avoid the need to have a judge making decisions, you can avoid the need for a guardian ad litem. This might be by creating a thorough estate plan that covers every potential scenario so that the judge has a clear understanding of what you want without needing to rely on outside input.

What Can You Do if You Disagree with the Guardian Ad Litem?

If you are the person being represented by the guardian ad litem, you can petition the court to find you mentally fit to speak for yourself. Even if the court finds that you don’t have the capacity to do so, the judge can still give weight to your requests in consideration with any feedback from your healthcare providers.

If the guardian ad litem is representing a child or another family member, the first step is to speak to them directly. They generally want to have as full an understanding of your family picture as possible and may not even be aware of your concerns. If this doesn’t work or you believe that they’re abusing their position,  you can make a motion with the judge overseeing the case to take a certain action or, in extreme circumstances, to remove the guardian ad litem.

What Happens When the Guardian Ad Litem Goes to Court?

The guardian ad litem may create a written report to submit to the judge. Any parties in the court action will generally be given a copy along with time to review it before the judge makes any final decisions. The guardian ad litem also usually makes a verbal report during a court session. The judge may ask questions, and the parties will usually be able to ask questions or speak as well. In more contested situations, this may turn into a more formal cross-examination like any other witness.

Remember, that the guardian ad litem is there to represent the best interests of a child or incapacitated person rather than to win a case. The best approach if you disagree with their findings is often to bring out new facts or things they didn’t consider rather than directly arguing against their recommendation.

Do You Still Need an Attorney if You Have a Guardian ad Litem?

A guardian ad litem is not a replacement for an attorney. The guardian ad litem helps to establish facts that an incapacitated person may not be able to bring up on their own. An attorney focuses on how those facts fit within legal rights and principles. An attorney also helps to figure out the best way to legally achieve the desired outcome and to prepare any necessary documents. Further, an attorney can only act for a competent client — either directly or under the guidance of someone else — so an incapacitated person needs more than just an attorney.

Does A Guardian Ad Litem Replace a Guardian or Conservator?

A guardian ad litem also doesn’t replace a guardian, conservator, estate administrator, or other similar roles. The guardian ad litem may monitor daily activities, but their job isn’t to run them. Their job is to observe and report back to the court. You will need to have someone else to manage the daily affairs or yourself or your children. A guardian or conservator are often also expected to report to the court, but the guardian ad litem provides an additional person to do things like monitoring how the guardian or conservator is managing your finances.

Work with an Attorney

The key to properly using a guardian ad litem and not having any surprises is proactive planning. Whether you’d want or not want to have a guardian ad litem overseeing things, you want that decision to be in your control. You do that by having a thorough estate plan for your family. To learn more, talk to one of the estate planning attorneys at Lilac City Law in Spokane, Washington, today.

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How Hard is it to Terminate Guardianship?

How Hard is it to Terminate Guardianship?

Legal guardianship remains an important protection that allows one compassionate person to care for another. The practice is most commonly ordered by the courts to ensure adult oversight of minors. Although used to a lesser degree between adults, guardians help people navigate important everyday life decisions.

When the court appoints a friend, relative, or professional from an agency to become the guardian of an adult, it’s often the result of diminishing health or incapacitation. For children, these issues can be added to a disheartening list of problems such as abuse, neglect, abandonment, and becoming wayward. Although the reason the court considers someone a ward in need of protection and care, terminating a guardianship can be an uphill battle.

How To Terminate A Guardianship

It’s essential to keep in mind that adult and minor child guardianships can be vastly different. In large part, that’s due to the underlying reason the court deemed someone a ward of the court in the first place.

In both types of guardianship, the basic premise is that the individual cannot conduct reasonable self-care. This may be true of both minors and adults, but most children have parents in place to act in their best interest. When our valued elders, for example, begin to lose the physical and cognitive skills to make salient health, wellness, and financial decisions, oversight may be necessary. Other adults may temporarily fall ill, and the protections are put in place only until they recover.

When children go astray, become incapacitated, or a parent is unable to provide proper care for them, guardianship tends to be a stop-gap measure. Either the situation corrects itself, or the minor eventually becomes an adult and takes on their own decision-making. In either case, the court will need to be formally petitioned to end a guardianship.

How to Terminate an Adult Guardianship

In order to understand how to navigate the stringent legal process of ending a guardianship, it’s essential to consider how you got here. In all likelihood, either a third party petitioned the court and won a case against you to deem you incompetent, or you came to the process voluntarily. This difference has a substantial impact on termination.

Going to the court and asking to be voluntarily deemed a ward came with certain advantages. You probably had input about who would become your guardian during your recovery. And, your wishes about what areas this person would hold legal sway may have been negotiated. Terminating a voluntary guardianship often entails merely proving you have regained competence.

On the other hand, involuntary tracts could mean that you will face increased resistance from the party or parties that petitioned the court in the first place. That may mean overcoming objections as well as having documentation and testimony from experts that you are prepared to resume control over your affairs. These are common steps that are required to terminate a guardianship.  

  • File Legal Papers: A Petition to Terminate Guardianship, and a Citation or a Notice of Hearing, will need to be crafted and filed on your behalf. Supporting documents may be required to gain a hearing. Materials may include a final accounting reportIf your guardian or conservator oversaw your estate while recovering, a final reckoning of all financial records must accompany your petition. Papers may call for letters from you’re your physicians. Your doctors must provide statements that assert you have regained the ability to conduct your own affairs competently.
  • Serve Guardian & Others with Papers: All relevant parties must be formally notified that you have petitioned to terminate the guardianship via certified mail. If this step is not thoroughly completed, a judge will likely not hear your case.
  • Attend a Hearing: The judge will read the pertinent documents and likely ask questions. If others object to the petition, more comprehensive testimony may be required. Once the judge has been satisfied that you meet the legal standard, an Order Terminating Guardianship will be issued.

If the guardianship pertained to end-of-life considerations, the court generally requires a financial accounting before releasing the guardian. The challenges confronting parents or other loved ones trying to terminate a guardianship and regain custody can be significantly different.

How to Terminate Guardianship Over a Minor

In order to restore your parental rights and regain custody of a child, you may be tasked with petitioning the court to terminate a guardianship. Much like when adults are deemed wards of the court, the reason your child has a guardian in place will likely impact how difficult you can anticipate the process ahead.

For instance, if another family member petitioned the court to have your child made a ward, the underlying claims will likely need to be adequately addressed. If it involved substance abuse, neglect, or a health condition, a proactive filing and subsequent argument at a formal hearing would have to overcome the initial court findings. In other words, you face an uphill battle of basically proving your ability to properly care for yourself and the child. The goal of this rigorous process will involve persuading the court of the following.

  • The adverse situation has been resolved
  • It’s in the child’s best interest to be placed with a parent
  • You can successfully provide for daily health, wellness, and emotional needs of the child
  • You are financially stable or are receiving adequate public assistance
  • You enjoy positive extended family and community relationships

The process of regaining parental rights and terminating a guardianship requires crafting a highly persuasive petition and supplying authoritative supporting documents, as well as possible witness testimony. There are also a variety of legal pathways that can be accessed, depending on how and why you got to this point.

  • When Guardians Object: In cases in which the court-appointed guardian objects to their removal, a full hearing may be required. This brings together the key stakeholders in the process to determine whether to keep court oversight in place or give your child back to you.
  • When Guardians Agree to Termination: In such cases, parents need only demonstrate that they are competent and able to serve the best interest of their child in a stable and healthy fashion.
  • Terminating for Adoption, Marriage, or Service: The act of adoption effectively ends ward of the court status. The same holds true in marriage, and minors who enlist in the military enjoy grounds to terminate the guardianship over them.
  • When a Child Turns 18 Years Old: When a minor reaches the age of majority, they are no longer a ward of the court and the guardianship times out. The court-appointed person would be wise to file a notice with the court.
  • Guardianships Over Estates at 18 Years Old: Control over assets does not generally end when a minor turns 18 years old. The court will need to be petitioned, and a final accounting of the finances must be filed. The court must issue a directive releasing the assets before the previous ward can access them.
  • Cases of Emancipated Minors: When the court agrees to emancipate a minor, they no longer are deemed a ward of the court. Part of the hearing should include the automatic termination of the guardianship.

In some cases, the court-appointed person finds that they can no longer serve in that capacity. This could be due to illness, relocation, or they believe terminating the guardianship is in the minor’s best interest. The court enjoys great latitude in such cases and may decide to resolve the matter in a number of ways. The court may agree that the minor no longer needs or benefits from oversight. In many instances, the court appoints a new guardian to take over the responsibilities.

Should You Speak with an Attorney to Terminate a Guardianship?

The short answer is: Yes. That’s because the court system involves complex filings, documentation, and bureaucracies that are difficult for everyday people to navigate. A simple missing document or misstep can upend your efforts to terminate a guardianship. It’s in your best interest to have a determined and compassionate attorney who works in the family courts on a daily basis. That experience allows us to put forward the best case possible on your behalf and get the results you deserve. If you are considering terminating a guardianship, call Lilac City Law and schedule a consultation today.

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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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How To Prevent My Child from Becoming a Ward of the Court

How To Prevent My Child from Becoming a Ward of the Court

If something happens to you and you’re unable to care for your children, the court system may step in. Making a child a ward of the court is only a last resort. If you’ve already made other arrangements, the court system would prefer to honor those arrangements as long as they account for your children’s best interests.

What is a Ward of the Court?

A ward of the court is a child who is under the care of the court system. The court monitors the child’s education, healthcare, finances, and other needs. The court may appoint a guardian for the child, or the child may be placed into foster care.

When Can a Child Become a Ward of the Court?

A child can become a ward of the court when their parents are unable to care for them. This can happen involuntarily in cases of abuse or neglect. In an estate planning context, it may be due to the death of the parents or an incapacitating illness or injury.

This process isn’t ideal for the children or their families, so it’s only used as a backup plan. If there are other arrangements, such as a nominated guardian who has the financial ability to care for the child, the court would rather entrust the care of the child to that person under the court’s supervision rather than having the state take responsibility for the child.

What Happens if Something Happens to the Parents?

If a child’s parents suffer a sudden accident or injury, a number of legal processes will begin. If the parents never return to pick up their children at school or some other location, the adults there will try to reach the emergency contacts the parents previously provided. If they can’t reach any family members or friends to take temporary care of the child, they may notify police or child protective services.

While the preferred option is to get the children with someone they know as quickly as possible, that is only a temporary solution. Without prior planning by the parents, they won’t have the legal authority to make important decisions for the children or even to maintain custody without a separate court process.

If there is no one willing or able to take care of the children, they may be brought to a shelter or placed into foster care.

Can a Parent Stop a Child from Becoming a Ward of the Court?

If you’re charged with abuse or neglect, you have due process rights to protect your parental rights and can work with an attorney who practices in that area to maintain custody. If you die or become incapacitated, it’s simply impossible to go to court and fight for your children. Since it’s this latter scenario that you’re trying to prevent through estate planning, the only way to prevent your child from becoming a ward of the court is to plan ahead.

How to Decide Who Takes Care of Your Children

If you want to decide who takes care of your children instead of having a court do it, there are a few steps you need to take.

Update Your Emergency Contacts

Schools, daycares, and anyone else who takes care of your children for the day will usually ask for a list of people who are authorized to pick up your children. This should include who should pick them up in an emergency when you can’t be reached. Your children should also know the name and phone number of a relative or close friend to call in an emergency.

Keep in mind this is just a temporary arrangement. Even if your selected person is willing to care for your children indefinitely, they won’t have legal authority to make decisions for them at the doctor, school, bank, or other important places.

Nominate a Guardian

A more permanent solution is to nominate a guardian. A guardian takes full care of your children with the same authority of a parent. While the court technically selects the guardian, it will honor a parent’s wishes as long as the nominated guardian is suitable. If your chosen guardian lives out of state, you may wish to also nominate a local temporary or backup guardian until the permanent guardian can arrive or your family can arrange for the children to move to the permanent guardian.

Create a Power of Attorney

You can also create a power of attorney for your children. This is similar to a guardianship in that you can grant your selected agent full authority to do anything you could, but it’s more temporary. A power of attorney can help in cases of temporary illness or if something happens to one parent while the other is traveling away from home.

Appoint a Conservator

A conservator is similar to a guardian but only handles financial affairs while another guardian handles everything else. Some parents worry about a guardian misusing assets the parents left for their children’s benefit. While courts do monitor guardians, some financial abuses can go unnoticed by the court if another family member isn’t aware to bring it to the court’s attention. Appointing a separate conservator provides a more direct form of oversight.

How to Provide for Your Children Financially

When courts are reviewing who will care for children, they consider financial means. A family member who you would like to be the guardian may not have the income or assets needed to raise your children. While the guardian generally doesn’t legally have personal liability for childcare expenses, your children do need some source of money in order to not become wards of the court. You have several options to achieve this.

Life Insurance

Life insurance is one of the easiest ways to provide for your children. You can buy a policy that covers your future earnings or what you would have spent to raise them including college costs. You can name your children as beneficiaries, or have the money go into a trust on their behalf.

Will

You can also use your will to leave money to your children. Creating a will is a simple step, but it isn’t without pitfalls. A will has to go through probate, and if you have debts, your creditors may be entitled to repayment before your heirs receive anything. A will also provides the lowest degree of control over how the money you leave is spent.

Trust

A trust with your children as the beneficiary holds assets to your benefit during your life and then automatically transfers them to your children upon your death. Some of the major benefits of using a trust are that you can set it up to hold money until your children reach a certain age or to be used for a specific purpose.

Durable Financial Power of Attorney

You should also prepare for a long-term illness or other incapacitation. Life insurance, wills, and trusts only work after death. If you are still alive, your family will need the legal authority to access your funds to use for your children.

A durable power of attorney kicks in on a triggering event you specify such as your hospitalization. You can give your power of attorney access to your checking account, or you can maintain a separate savings account with funds for your children in case of an emergency. To the extent you have funds available, this guarantees money will be available for your children regardless of your family’s willingness or ability to cover their expenses.

What Do You to With Your Plan?

Once you have a plan in place, make sure the right people know about it. Keep copies of everything with your other important documents, and tell your family where to find them. Anyone you select to care for your children should have their own copies to present to legal authorities if needed.

In addition, give age-appropriate information to your children. This can be as simple as telling a toddler to call grandma if you don’t answer or telling an older child their uncle will take care of them if anything ever happens to you. After a certain age, this can actually be comforting to children who may have seen movies about orphans and have their own worries about becoming wards of the court.

Get Help from an Attorney

Preventing your child from becoming a ward of the court requires proactive planning. To make sure you don’t miss anything and everything will work as you expect, talk to an estate planning attorney at Lilac City Law. Contact us now to schedule a consultation.

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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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The Importance of Power of Attorney During Estate Planning

The Importance of Power of Attorney During Estate Planning

Your estate planning has many different parts that all need to move in the same direction in order to be successful. A vital part of this process is how to disseminate the various powers of attorney (POA). The POA will be one of the most important estate documents that you create, so you owe it to yourself to know as much as you can about it. Let’s take a look at just how important the POA is and how it will be used during the estate planning process.

What Is the Power of Attorney?

The power of attorney is the power to organize affairs on your behalf. There are different powers of attorney for different aspects of your life. For the purposes of this text, we will focus most on the financial POA, but there are also medical POAs and others that may apply during the estate process depending on circumstances.

In most cases, a power of attorney becomes effective immediately upon document execution. Contrary to popular belief, powers of attorney are not only for when a person becomes mentally incapable. In many cases, the POA document does not completely remove the power of the principal to manage their or her own affairs. The document simply grants the agent the power to act in place of the principal if needed. If the principal remains mentally competent, he can change the POA by replacing the agent or revoking the power totally.

However, the POA document truly becomes the most important document in the estate planning portfolio if a principal becomes somehow incapacitated or otherwise unable to handle their own affairs.

What Happens Without a Power of Attorney in Place

If a principal becomes incapable of handling their own affairs and has no power of attorney document in place, the family of the principal faces a potentially contentious situation. The POA document is the document on record of the wishes of the principal. Without it, there is no direct claim to the finances that the principal was in control of. Family members may begin to fight over the right to control things, especially if the estate is especially large or there are many valuable assets to consider.

In place of a designated person with the powers of attorney, the affected parties may agree to file for guardianship of the assets and property of the principal that has been disabled. Instead of simply following the wishes of the principal as mapped out in the POA, the family must now go through an often long and drawn-out court procedure.

The Process of Guardianship

During the court process of selecting a guardian, there will usually be a lawyer who is representing the Petitioner. The Petitioner is the individual who is looking to be named as the guardian. The Petitioner and their attorney will need to face, at the very least, an attorney who is in court to represent the rights of the person who has been disabled. No matter how close the family is, this process will likely generate thousands of dollars in legal fees in order to legally appoint the guardian.

Keep in mind also that a power of attorney document that is not clear may trigger this contentious process as well. You need to have the right attorney with the right experience in order to avoid these problems — just having a POA document that is not appropriate for your situation is not enough. A properly drafted power of attorney directly from the principal, while he is competent, is always preferable to a guardianship court proceeding.

Even when a legal guardianship is in place, the court maintains a Big Brother stance over the guardian to supervise the administration of the estate. Guardians are much less free to manage an estate than someone who is appointed through a power of attorney document. Guardians must always get the permission of the court to legally undertake many important assets that involve the estate, including paying the attorney’s fees for the procedure itself.

The court will also require that a guardian file an accounting of the estate on an annual basis. On top of this, a guardian must also file an inventory of the estate so that the court knows every activity that is taking place within the family estate. Having to report everything to the court undermines the very nature of a private estate, and it is much more expensive than a power of attorney transfer of responsibility. In most cases, the oversight of the court means that a family must employ more legal services in order to stay in compliance with regulations.

If you are in this sensitive situation, we can help you through it no matter who you may be up against. Do not hesitate to call us if you believe you have a legal claim to the estate of a family member who has been recently incapacitated.

Having an Effective POA

As mentioned before, the power of attorney that is set up by the principal must be well-drafted and relevant to the current situation. Otherwise, the court may trigger the guardianship process and all of the expenses and legal hassle that comes with it.

What makes a POA document effective during estate planning? Let’s take a look at the characteristics of an effective power of attorney.

  • Listing specific powers and limitations. A good power of attorney will list out the specific actions that an agent can take on behalf of a principal. Among these actions may be paying bills from the principal’s assets; managing those assets; selling all or part of the estate; and setting up various structures to avoid estate taxes. A principal may wish their estate to be used in a very specific way, and this is what the power of attorney should spell out in clear terms.
  • Language in the POA to persuade financial institutions to accept an agent. The financial institutions that did business with a principal are under no requirement to accept an agent, even from a properly worded POA. Many of these institutions now require language that is very specific in the POA to reaffirm that there is no funny business going on. Agents should also be prepared to reaffirm their responsibility, possibly on the financial institution’s proprietary forms.
  • Listing consolidated accounts. As a principal, if all of your accounts are kept spread out, your agent will have a tough time jumping through all of the hoops of the financial institutions want. Every bank is different. Consolidating accounts as you age not only helps to organize your family finances in the estate, but it also makes it easier to manage while you maintain control over them. You may want to list all of these accounts by name in the POA so that each financial institution can be more assured of your agent’s viability.
  • Decide on the type of POA. There are two major types of POAs that you can consider: the springing POA or the durable POA. The durable POA gives the power of attorney as soon as the principal signs it. The springing POA only takes effect in the event of a certain condition, such as the death, disability or incapacity of the principal. The timing of agent powers is a vital part of a POA. Without it, an agent may try to take over a principal’s estate too early and cause contention. Keep in mind that not all states allow springing POAs.
  • Define the conditions of incapacity. The last thing that you want is for someone else to determine when you are incapable of managing your own affairs. In your POA, you can name a medical professional to certify that you are incapacitated before your agent can take any action on your estate. This puts an added layer of protection in your POA, and it also gives your agent a good check against absolute power while you are still capable.
  • Establish oversight. Although your agent may have power of attorney, you can limit this right with certain oversights. The key is to make sure these oversights are written down specifically and fully clear to your attorney, to your agent, to the overseer and to anyone else who is involved in your estate.

Get Help with Powers of Attorney Today

The points above are just a few of the important aspects of the power of attorney document during estate planning. Every plan is different based on the individual needs of the estate. Make sure that you have the right attorney by your side when it is time to draft this essential document. Give us a call or an email with any questions that you may have about the process, or to get things started with your own POA. Time is of the essence, and there is no better time than now to get your affairs in order.

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3 Things to Consider When Naming Your Children’s Guardian

Choosing your children’s guardian can be an extremely daunting task. Sure, there are those in your life that you trust enough to babysit. But would they take on the responsibility of raising your kids if something happened to you?

You will probably have scores of friends and loved ones dropping lines that they would like to be your child’s guardian but most of those people do not fully appreciate what that means.

It is on you to make the right choice for your child. We are here to give you a couple of tips for making your decision on choosing your children’s guardian.

Choosing Your Children’s Guardian

Consider the following:

The Person’s Character

The first thing to think about is the fact that your kid could be raised by this person! If that happens, your child will be informed by your guardian’s values and beliefs. 

Does the guardian share your core values and act in a way that is decent and respectable by your standards? What sorts of things do they truly value and would they be willing to take the time to instill those values to your child?

Their Financial Situation

A very important factor to consider is the financial situation of the people that you are considering.

Think ahead to the near or distant future — can you see your potential guardian making enough money to support your child?

Are they hard-working and responsible enough to take on the duty of raising and supporting a child? It is hard to instill that motivation in someone without kids until it is their responsibility, too.

Think ahead and look for those who will be able to support your family through thick and thin.

Determine Back-Up Guardians

It would be a big mistake to choose only one guardian for your child. It is impossible to say what the future holds and it could be that the guardian you choose passes in an accident with you, leaving no discernable choice for a guardian to your child.

Make sure that you have a solid list of three or four guardians and the order in which you have chosen them. It never hurts to be too careful. When the life of your child is in the balance, everything helps.

Just because someone has been with you through thick and thin does not mean you should name them as your child’s guardian. Your friend you have known from elementary school but still lives in his mom’s basement might want to be on the list but it would be wise to leave him out. 

In other words, think with your mind, not necessarily your nostalgic heart. 

Preparing for the Future?

It is never too soon to name your children’s guardian. Further, it is never too soon to start planning for what happens to your family and your things if you should pass unexpectedly.

Contact us for more information on planning for the future.

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