Full or permanent guardianship is difficult to terminate or change once granted. In the case of children, it often creates a stable environment for their growth and development because the permanent guardian has all the rights over the child as the natural parents would.
However, it is not as permanent as it ends once the child reaches the age of 18. In some rare situations, parents may petition the courts to give back custody of the child even after an order placed the child with a permanent guardian.
Who Can Be a Legal Guardian?
Generally, a hearing is held, and the court decides if the person seeking guardianship is well suited for this role. A petitioner’s criminal background, credit history, and potential conflicts of interest are factored into this decision. In cases where more than one person is seeking responsibility for a ward’s needs, the court will decide who is best qualified for the position.
Sometimes one person is selected to handle the ward’s personal and medical decisions, also referred to as guardianship of the person, and another is granted responsibility for managing the ward’s financial matters, known as guardianship of the property. The ward’s preferences and any legal documents prepared before their incapacitation are also factored into this decision.
Many states prefer the ward’s spouse, adult children, or other family members since they are usually the most familiar with the person’s unique needs and abilities. A professional guardian or public guardian may be assigned if a relative or friend is not willing or qualified to serve in this role.
What Parents Should Consider When Choosing A Permanent Guardian?
In many scenarios, 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 pass away prematurely or be otherwise unable to provide proper care.
Making an informed decision about whom to nominate for guardianship is among the most significant challenges parents face. Therefore, it is crucial to think through the process and weigh your options, and you will be able to select the best possible candidate.
Below are some highlighted elements of what to consider in nominating a guardian:
- Consider Your Core Values: Although you may be part of a loving family, child-rearing remains deeply personal. Parents, siblings, and other loved ones may or may not share your core values. Get a sense of issues such as religion, political perspectives, education, integrity, and other aspects of life that truly matter. Then, determine who best mirrors your core values and would make a suitable guardian if necessary;
- Multiple Guardian Option: There are some rare times when the designated guardian becomes unable or unwilling to fulfill the duty. Therefore, it is recommended in the parents’ best interest to include an alternative in your estate planning documents;
- Financial Stability: A guardian who manages money efficiently may be more likely to sustain a healthy and secure home life for your child. This person may need to manage any assets to support the minor or work cooperatively with your estate’s trustee and;
- Speak To Your Family: Take the time to explain your reasoning in a way that shows compassion and care. You are basing the decision on what you perceive as an upbringing most closely aligned with your desires. While you respect others’ values and abilities, it may be worthwhile that there are specific reasons for your choice. Once you have reached an agreement with a guardian candidate, it is important to follow through with an attorney and make the designation legally binding.
What are the Different Types of Guardianships?
Different types of guardianship are important to note. First is the guardianship of a minor; the court may appoint an adult guardian to care for a minor who is not the adult’s child. Courts select guardianships in several cases, including when parents abandon a minor, when a minor’s parents pass away, or when a minor’s parents are incapable of providing proper care.
A legal guardian may be a friend, family member, or someone the court believes will act in the minor’s best interest. As the minor’s legal guardian, an adult may be awarded physical custody, or they may act as a financial guardian who exercises control over the minor’s property. In rare situations, the court may appoint an adult to serve as a guardian ad litem.
Furthermore, while the minor’s parents are legally required to continue the financial support of the minor, the legal guardian must ensure that the minor has food, shelter, clothing, education, and medical care. The legal guardian has the right to consent for the minor and make all decisions regarding the minor’s health and education. A legal guardian will maintain custody of the minor until the minor reaches the age of eighteen or until a judge decides that the minor no longer requires a guardian.
Next is the guardianship of the estate, which deals with property management. For instance, if a minor has substantial money or property, the court may select a financial guardian, or guardian of the estate, to manage and protect the minor’s assets. Moreover, this sort of guardianship requires the guardian to assume responsibility for the ward’s personal property.
The guardian is required to preserve and protect assets, distribute income, and obtain property appraisals. The guardian must keep the court continuously informed of the estate’s status. A guardian of the estate can make all financial decisions for the minor until the minor reaches the legal age or until the minor’s assets are depleted.
Additionally, there is a guardian ad litem. A court assigns a guardian ad litem to represent a minor’s interests in a legal proceeding. Guardians ad litem are usually appointed in divorce cases, probate matters, or situations where the minor has been abused or neglected.
Lastly, there is the guardianship of an elderly or incapacitated individual. Courts choose guardians or conservators to protect the interests of elderly or incapacitated individuals. Because the creation of guardianship may deprive an individual of some personal rights, certain steps are necessary before a guardian is appointed.
For example, an individual has a right to notice and representation by counsel before a guardianship proceeding. During the proceeding, the individual has the right to participate, confront witnesses, and present evidence. If the court assigns a guardian, the guardian is encouraged to respect the ward’s wishes and give the ward as much autonomy as possible.
This sort of guardianship of the person requires the guardian to make decisions regarding the care and support of an elderly or incapacitated individual. The guardian can consent to and monitor medical treatment, arrange professional services, monitor living conditions, and make end-of-life decisions and preparations.
When making such decisions, the guardian is expected to consider the ward’s wishes and desires and their physical and financial needs. The guardianship will continue until the ward dies or until the court determines that the guardianship is no longer necessary.
When Do I Need To Contact a Lawyer?
If you are considering permanent guardianship, there may be nuisances of which you may not be aware. It is recommended to contact a local guardianship lawyer to assist you with the process. It is important to be aware of the circumstances that warrant permanent guardianship.
