What Is A Guardianship?

Some people require help undertaking daily tasks and making decisions related to their personal affairs. This is especially true when one sustains severe injuries or has a terminal medical condition. In such cases, courts appoint suitable guardians to help incapacitated individuals (wards) make decisions and manage personal/non-personal affairs. Legal experts call this entire process guardianship. Here is some more information to help you answer the question: what is a guardianship?

Guardianship versus Legal Custody

Although guardianship and legal custody are court processes designed to protect the rights of incapacitated people, they are quite different. To start with, a guardian can make healthcare decisions on behalf of a ward while a legal custodian has limited authority in making similar decisions. Moreover, a guardian can make designate a temporary guardian in the event he/she is unable to fulfill guardianship responsibilities.

A legal custodian may not have the authority to transfer custodianship duties to another individual temporarily. Finally, some states like New York allow guardians to add wards who are grandchildren to their medical plans. This is not the case with legal custodians because they cannot add incapacitated grandchildren to their medical plans.

Guardianship Timeline

Guardianship is not a permanent arrangement. It can end at some point in the future depending on factors such as:

• Incapacitated person reaching 18 years of age. When one turns 18, he/she is legally an emancipated adult with the right to make his/her own education, medical, financial, or legal decisions.

• Death of ward.

• A court determines that guardianship is no longer necessary.

• A ward under 18 years gets married after reaching age when he/she can legally consent to engage in marital relations. However, guardianship over ward’s property/estate remains valid until he/she turns 18.

• A court removes guardian after he/she violates guardianship responsibilities.

• After exhaustion of a ward’s material and financial resources. This is true in cases where guardianship was set up with the sole aim of managing a ward’s resources.

Guardianship and Children

Where children are involved, guardianship operates in a unique way. Firstly, the rights of a parent do not end after another person is appointed as his/her child’s guardian. In addition, parents maintain financial responsibility over their kids even when they live elsewhere. However, one cannot take his/her child from a guardian’s home without court approval. The same is true with visitation rights.

According to the US Department of Health and Human Services, Children’s Bureau, caregivers can assume legal guardianship of children. Although this type of arrangement is complex compared to custody transfer, it is the right approach if a caregiver is related to a ward and wishes to provide him/her with a permanent residence. As stated earlier, this type of guardianship does not void parental rights. The Children’s Bureau recognizes two types of caregiver guardianship:

• Subsidized guardianship
• Standby guardianship

Subsidized guardianship is designed in such a way that caregivers receive financial assistance after assuming legal responsibilities over wards younger than 18 years. According to a post published by the Children’s Bureau, some states are contemplating using subsidized guardianship as a means of providing permanency to children not adopted or reunited with their families. On the other hand, standby guardianship involves appointment of a guardian for children whose parents may be unable to take care of them in the near future. For instance, a court may appoint a standby guardian if a child’s parents are suffering from terminal or life-threatening medical conditions.

It is important to note that parents can create standby guardianship informally (without going to court) or formally (through a court process). In addition, parents can raise objections to standby guardianship. When this happens, parent/s involved can notify standby guardian about guardianship changes if appointment was done informally. If a court appointed a standby guardian, the concerned parents must raise objections with the appointing authority in order to effect guardianship changes.

Conclusion

When one is unable to make sound decisions and manage his/her affairs properly, a court of law can appoint a guardian to take over these responsibilities. Nevertheless, guardianship can end when a ward turns 18, dies, regains ability to manage personal affairs, a court deems guardianship unnecessary, or guardian is unable to discharge guardianship duties. In cases where guardianship involves children, parents retain parental rights.

Reference Resources

https://www.childwelfare.gov/topics/permanency/guardianship/
http://www.nyc.gov/html/caregiver/grandparenting_2d.html

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