Adult and child guardianship involve significant risks and responsibilities. Surrendering parental privileges and assuming those duties are not accomplished through an informal agreement. Even if parents want to waive their rights to willing caretakers, the parties must follow a specific procedure.
The guardianship attorney you select can have a significant impact on your life and the life of the individual you are seeking guardianship over. When determining who you want to stand by your side during guardianship proceedings, you will want an attorney who is knowledgeable, communicates with you, explains the complexities of the court proceedings and advocates for you in court by clearly expressing your qualities and abilities to serve as a guardian.
Maintenance of a minor’s or adult’s welfare can change over time. Modifications may require further interference by government agencies or childcare facilities that report to the court. The court itself may appoint a guardian under restrictive terms that require constant monitoring and supervision, even if that plan does not really serve the child’s or adult’s needs.
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The guardianship process begins with a petition. This involves filing official paperwork at the court with control of your case. Depending on whether the parties with current parental privileges consent to the guardianship, these forms may change. Minors 14 years of age or older must also consent to the guardianship. If no one steps into the parental role, the court can appoint a professional or childcare agency to raise the child. Once this happens, the court will order regular maintenance checks to ensure adequate performance by the welfare provider.
Adult guardianship procedure can be equally complicated and often involves multiple assessments of the individual seeking or requiring guardianship. The team at O’Flaherty Law will ensure that the guardianship process is as simple as possible. We will ensure that you are provided with all the necessary information to determine the form of guardianship you wish to pursue, that all appropriate documents are filed in a timely manner and that you are prepared for all future proceedings.
At O’Flaherty Law, our seasoned guardianship attorneys balance all these factors to determine the right course of action for you. Whether that means appointing the right guardian, taking over parental privileges, or avoiding guardianship altogether, you can count on putting the best legal minds to work on your case.
The purpose of a consultation is to determine whether our firm is a good first for your legal needs. Although we often discuss expected results and costs, our attorneys do not give legal advice unless and until you choose to retain us. We take your legal matters very seriously, which is why with each consultation, we strive to ensure you feel confident about the future of your case.
Whether you are seeking guardianship yourself or for someone else, you will want help navigating the legal process. A guardianship lawyer will guide you through the procedures required to assume the legal role of “guardian.” No matter how much you have read, you will want to start by consulting a legal professional, preferably one familiar with family and probate law. Once you find a reputable guardianship law firm, schedule a phone or virtual consultation.
Bring all the documents you have acquired regarding the guardianship and be frank about what you want from the relationship. All communication with your guardianship lawyer remains confidential, including what you discuss in the initial consultation. Some details that you think unimportant can be critical to your case. You will learn what distinguishes different types of “guardianship:” temporary versus permanent, conservatorship versus power of attorney. If you are not appointed guardian by the court, discuss whether you have the consent of the party giving up guardianship or ask about the full range of duties you are waiving.
Finding a good guardianship lawyer is just the beginning. The attorney will ask questions to narrow down the issues and create a strategy to get an agreement that most benefits you. You have not consented to any legal services or related fees until you sign an agreement in writing. Because most guardianship forms are filed in court, having an advocate can save you time and money. In some cases, guardianship attorneys appear in family or probate hearings on your behalf. Guardianship terms can change, so be ready to talk to your attorney before going to court.
Except for some types of guardianship like those designated by the court or a government program, securing guardianship requires familiarity with how to best serve the interests of the child or the child’s estate. If you are not a guardianship lawyer, this may require securing the consent of an interested third-party and taking court-mandated childcare courses. If guardianship over a child or estate is contested, you must file a petition with the court declaring the lack of consent. The application for appointment as guardian at least requires consent when the minor is 14 or older and disclosure of status as a child in need of services (CHINS).
Any individual 18 years of age or older who is of sound mind can be appointed a guardian of a disabled person. That individual must not have been convicted of a serious crime and must demonstrate to the court an ability to protect the well-being and the estate of the disabled person.
A disabled person is an individual who is unable to make decisions because of a mental incapacity, physical incapacity, or, in some cases, addition. An individual making unpopular decisions does not qualify them as a disabled person.
For children, guardianship typically ends once the child turns 18. But a guardian is not absolved of all responsibility on the child’s eighteenth birthday. Depending on the court in charge of your case, conditions of release may be different. Courts are generally unwilling to allow termination of guardianship before the legal age of emancipation because teenagers can then become “wards” or the responsibility of the state or may be placed in foster care.
Those who want to end guardianship before the child turns 18 should have a valid argument and viable substitute to get approval from the court. With the help of a guardianship attorney, the court may also grant guardianship or custody in cases where:
If the court finds immediate and irreparable injury would occur without such appointment, it will delegate a temporary guardian or custodian for a period set by the court. A temporary custodian may also be appointed if it finds temporary suspension of parental rights necessary to protect the child. Upon the death of a parent with custody, the court may also name a temporary guardian if one is not already provided for in writing.
A temporary guardianship is an emergency action by the court. A temporary guardian is appointed when an emergency occurs, like the death of a prior guardian, and time does not permit the proper guardianship proceedings. A temporary guardian is appointed when the necessity of a guardian for the welfare and protection of a disabled person has been demonstrated to the court. A temporary guardianship is only in place for 60 days or until a guardian is regularly appointed, whichever comes first.
Adult guardianship or conservatorship is only necessary where the adult is incapacitated or incapable of personal and financial decisions regarding their care. Guardianship for disabled adults carries many responsibilities and exposes trustees to lawsuit brought by interested beneficiaries. For an agreed-upon fee, adult guardians may have to:
Guardianship papers and official forms must be filed with the court by all interested parties. The type of petition you file will depend on whether the parents or party with parenting privileges consent to the arrangement. Common consensual guardianship forms may include:
- Notice of Appearance if Not Represented by a Guardianship Lawyer
- Verified Petition for Appointment of Guardian of the Minor
- Confidential Guardianship Registry Information Sheet
- Notice of Exclusion of Confidential Information
- Waiver of Notice & Consent to the Appointment of Guardian
Guardianship papers for cases in which parties with parenting rights do not consent to guardianship are like those above except they may also include:
All guardianship forms contain a proof of service or delivery to individuals with current parenting rights. They must appear for the court-scheduled hearing. A guardianship lawyer will ensure your petition is properly filed with the correct court, avoiding delays in the process.
While the team here at O’Flaherty Law will be available to answer all of your questions and concerns regarding your guardianship case. We want you to be as fully informed as possible. Our goal is not only to get you the best possible result in your case but for you to feel that all of your questions and concerns have been responded to clearly. Below we include our most frequently asked questions regarding guardianship.
Even with consensual guardianship, official forms must be filed with the court. The different forms have a filing fee you must pay just to have the court process your claim. If you cannot afford the filing fees, you may be eligible for a waiver.
There will likely be a court hearing you should attend with a qualified guardianship attorney. The rights you assume or give up will largely determine the child’s future. Legal fees could be minimal but will likely increase the longer a guardianship case takes to settle.
Guardianship may be temporary, semi-permanent, or fixed by the court but the most common types of guardianship will usually revolve around issues of children.
• School district
• Type of custody
• Health care needs
• Emotional welfare
• Social and special needs
When it comes to juveniles, “custodians” refer to certain schools, foster homes, licensed childcare facilities, and other agencies that care for the child on a continuing basis. Guardianships for disabled adults is also another common type of guardianship.
Even if parents are fully willing to give up their privileges, you will probably need a guardianship lawyer to protect your rights. If the biological parents have a settlement agreement with guardians that both parties agree to enforce, a lawyer may not be necessary. But usually, there can be other parties “interested” in gaining guardianship of the child. These could include:
• Biological parents
• Adoptive, foster parents
• Relatives of any parental type
• Relatives of the adopted child
• Sibling who is not yet adopted
• Adoption agencies or the state
With so many interests at stake, parties are bound to disagree on what will “best serve” the child. Parents who do not leave on the best terms can still come to an amicable agreement outside of court. But because of the legal duties involved, a skilled representative may be necessary.
There are alternatives to both adult and child guardianship that do not involve courts. Simply allowing your children to live with a friend to attend school can be done by submitting forms required by the school. Other legal duties like those of a guardian may also be accomplished through various instruments and designations such as a:
• Living will Power of attorney
• Living revocable trust
• Health care representative
• Advance medical directive
• Social Security representative
Something called “supported decision making” is also available for the intellectually and developmentally disabled. This may be used for adults as well. These alternatives are less restrictive and need not involve court approval. Experienced guardianship attorneys can help you take control of decisions relating to your child or property rather than a court appointee.
Plenary Guardianship is a long-term guardianship that must be approved by courts. Plenary guardianship is applicable when the parent or legal guardian is deceased, the parent or legal guardian is unwilling or unable to make daily decisions for the child, the parents or legal guardian leave the child with an adult and fail to return, the parents or legal guardian consent to the guardianship, or the parents or legal guardian are arrested, detained, removed or deported due to immigration issues.
Once appointed, the guardian cannot give up their responsibilities unless there is a parent willing and able to care for the child or another individual is willing to be appointed guardianship of the child. The plenary guardianship ends automatically when the child turns 18 years old.
A Stand-By Guardian is an individual selected by the parent or legal guardian to become guardian of the child if the parent or legal guardian can no longer care for the child. This may occur when a parent or legal guardian becomes sick, dies or must live apart from the child for a long period of time. This guardianship does not need to be approved by a judge, but it must designated in writing and signed and witnessed by two individuals, not the appointed guardian, who are at least 18 years old.
A Short-Term Guardian can be appointed when a parent or legal guardian knows they will be unable to care for the child for an explicit period of time. At the conclusion of that time period, the parent or legal guardian is willing and able to resume caring for the child. Similar to a stand-by guardianship, a short term guardianship does not need the approval of a judge, but the guardian must be designated in writing and signed and witnessed by two individuals, not the appointed guardian, who are at least 18 years old. The agreement must state the end date, typically not longer than a year.