Legal Guardianship

A guardian is a person who is responsible for the care and welfare of another person. In the case of children, legal guardianship is automatically given to the parents at birth; however, if the parents are deceased or found unfit to care for their child, guardianship is given to another person.

Besides parents, there are two types of legal guardians for minor children: subsidized and standby.

• Subsidized guardians include foster parents, who are given financial assistance to pay for the needs of the child for whom they are caring.

• Standby guardians are chosen by the parents of a child, most often when the parents have a life-threatening illness and are expecting to be unable to care for their child in the near future.

The process of obtaining legal guardianship of a child begins with the filing of a petition. This petition lets the family court know that guardianship is being sought, and will be followed with a request for evidence regarding the filer’s fitness to be a guardian. Proof that the parents are deceased or otherwise unable to care for their child will be required, along with proof of a positive and established relationship with the child. The aim of the family court is to do whatever is in the best interest of the child.

Sometimes, a person seeking guardianship will be required to put up a fiduciary bond to cover any liability expenses arising from caring for the child. While this process is taking place, a temporary guardian may be placed to care for the child and serve their interests while a more permanent situation can be established.

Once a person is granted legal guardianship of a child by the court, certified papers evidencing the decision will be sent to the new guardian. It is important to retain these papers for future reference.

There are rights and responsibilities that come with being a legal guardian. The guardian has the same responsibilities as a parent would, meaning they must care for the child, make sure the child obtains an education, and provide a safe home for the child. The guardian retains the right to discipline the child as a parent would.

A guardian is different than an adoptive parent because the parents may still have contact with their child when a legal guardian is caring for them, and the birth parents retain a financial obligation for their child.

Guardianship is not limited to the care of a child; guardians may be placed for adults that do not have the mental capacity to care for themselves. This can include an adult who is incapable of caring for themselves because of mental illness, or can be a parent who suffers from mental deterioration, causing dementia or Alzheimer’s disease. Guardians may even be placed for an adult who is addicted to alcohol or gambling to the point that they have seriously harmed themselves or their family. If an adult is recklessly spending their estate to the detriment of themselves or family members, a temporary guardian may be placed.

Having The Guardian Clause In The Will

Wills are written to ensure that the wishes of individuals are adhered to after they are dead. The legally binding documents give instructions on how the estate or property of the will the owner should be treated after his or her death. Wills are very important, especially for those with children or dependants. When a will is written for someone with children, there is always a guardian clause which seeks to have someone to represent the children as long as they are still minors.

The clause helps in appointing or denoting an individual’s choice of person or persons who will care for the minor children after death. Those who do not have minor children do not have to include the clause. The choice of the guardian for one’s children is very important. For those who are married, the spouse is typically appointed as the guardian, unless otherwise stated. It is recommended that those who are married select their spouses as the first choice, and then they can pick another guardian as the second option. This is especially useful in case the two parents die at the same time.

Having the guardian clause gives the writer the opportunity to choose someone they trust to take care of their children. Without this clause, the right person may be appointed by the court, which may not necessarily be in the best interest of the children. Many children have been exploited by the very guardians who were supposed to take care of them. It is, however, recommended that the choice of the guardian be a guide to the court, but not completely binding. By doing this, the court can choose a new guardian for the children if the person indicated on the will is not working in the best interests of the children. In most cases, the court will always approve the guardianship request based on the clause.

The guardian clause grants rights to the person chosen as the guardian, to handle or care for any property left by the deceased. The guardian is supposed to handle the property for and on behalf of the minor children. The guardian named should be indicated on the document, with their full name. This is done to avoid any future problems should there be two people with similar names. Appointing an alternative one, by full name, is also important. There is also needed to identify the guardian’s relationship. Adding titles such as mother, father, wife, husband, or godmother and godfather, is important. It should, however, be noted that the guardian does not have to be family.

Not anyone is eligible to be appointed as a guardian. The guardian should be an adult of sound mind. A parent who has parental responsibility for the children can achieve a legal guardianship. This is so even though the parent is not the natural parent. The guardian clause becomes effective after the death of the parents. From that point on, the legal guardian makes all decisions regarding the children’s education, health care and other day-to-day issues, including parental supervision.

Today, people are choosing to use online will templates, which they can fill out themselves, or with the help of a lawyer. The online service has helped to inform people about details required in writing a will. They are convenient, and they include all the information necessary to ensure the will is legal. Failure to appoint guardians for children can lead to a situation where the children find themselves in foster care. Where there is no guardian appointed, a relative or family member can present themselves and volunteer to act as the one with legal guardianship. The guardian clause has the option of revocation, where previously appointed guardians can be changed or revoked.

The Steps to Being Your Grandchild’s Legal Guardian

As you may know there are more grandparents raising grandchildren now than ever before. If you are having problems wondering whether or not your grandchildren are living in a safe environment then it may be time to take action and gain custody or legal guardianship so you can be sure they are taken care of. The steps you must take to get guardianship are pretty straight forward and let’s look at the definition according to Wikipedia before we get started:

From Wikipedia: A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person, called a ward. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability. Most countries and states have laws that provide that the parents of a minor child can designate who shall become the child’s legal guardians in the event of death.

I would like to point out some reasons (but not all) you might want to try to gain guardianship.

Failure of the parents to provide

Physical care and cleanliness
Emotion care and a proper place to live
Are they sick and going without proper medical care?
Tardy to school,are they missing a lot of school and for what reasons?
No supervision at home. Do you know that they are being left alone at home?
Are they being exposed to a harmful environment, are the parents are making drugs inside the home?

If you are thinking of becoming your grandchild’s legal guardian the first thing I would do is to try to get the parents to just sign it over to you until they can get help with their problems. If this doesn’t work out it may be time to file a petition in court. The steps for this differ from state to state but are basically this:

File the petition
Gather the evidence you will need to prove that the children aren’t being taken care of properly
Bring witnesses with you that can back up your findings
The parents may dispute the wrong doing
The Judge will evaluate the situation as best he can
Witnesses will be called to support the need for a guardian to be appointed for the children
If the evidence shows the need and you are a suitable guardian you will be appointed.
If enough evidence has not be provided to support what you say the judge may send it to trial

In Summary: We have a real problem in our society today of parents not being able to care for their own children. We as grandparents must step up and see to it that our grandchildren get the care they need and hopefully it can be from us. Being a grandparent lets me know that I don’t want my grandchildren in foster care.

The Importance of Appointing a Legal Guardian in Your Will

When you have children, as a parent you have a responsibility to plan ahead to ensure that your children will be protected if something unexpected happens. One key situation to consider is what will happen to your children if for any reason you are unable to care for them. By appointing a legal guardian, you have the peace of mind of knowing that even if something happens to you, your children will be safe.

Choosing a Guardian

When deciding on a guardian for your children, the best choice may not be the most obvious choice. You may think that one particular family member or close friend would make a great guardian, but perhaps this person is somehow ill-equipped to care for your children. The following list of considerations is a good guideline to follow to make sure that your prospective guardian would be a good choice for your children:

Does the person already know your children? Do they have an established relationship? Do your children trust and feel comfortable around this person?
Is the person financially capable of caring for your kids?
Does this person have a stable family life? Are they settled or do they move frequently?
Does this person have a parenting philosophy similar to your own? Do they share the same beliefs and values? Will he or she encourage good habits in your children?
Is the person healthy enough to care for your children in the long term?

Making a Guardian a Legal Guardian

If you already have someone in mind to care for your children, you must make the appointment legal in order for their guardianship to be official. Simply calling someone your children’s guardian or godparent is not the same as appointing a guardian. Naming a guardian in your will is a legally binding way to ensure that care of your children passes to the guardian you choose.

If you do not specify a guardian in your will, if something happens to you the state may appoint a guardian that you do not approve of. Typically the state will confer guardianship to a close family member, but their choice may not align with yours. It is therefore extremely important to make the guardianship appointment legal to protect your and your children’s interests.

For More Information and Assistance

Appointing a legal guardian can be a difficult decision for a parent to make, but it is crucial to ensure that, if something happens to you, your children will be raised in a safe environment and in a manner that you approve of.