When making decisions or providing care for a child in atypical circumstances, a guardianship may be exactly what you need to consider. Whatever the circumstances that you find yourself in, understanding what your options are and why guardianship may be in the best interests of the child in your life could be life-changing for your entire family. This is what we are going to be discussing in today's blog post from the Law Office of Bryan Fagan. When it comes to taking on responsibilities and raising a child, a guardianship can be ideal for all persons involved.
You can improve the life of a child dramatically by choosing to become their guardian. When a child needs guidance and structure then a guardianship may be exactly what he or she needs. Think back to all the times in your life when your parent was able to help you avoid potentially big mistakes. If you have a child in your life who could stand to use the same kind of advice, guidance, and support then a guardianship may be the best possible path to give him or her what is needed at this point in their life.
Another key aspect of this discussion is that as a guardian of a child, you are going to be in a position to be able to make decisions for him or her from a legal perspective. To this point, you may have been helping the child as much as possible with their finances and day-to-day life but until you can weigh in on their education, health, and other important areas of their lives in the eyes of the law, there is only so much you can do. Applying for government benefits, consenting to surgical procedures, and being able to apply for financial aid are just a handful of the areas of the child's life you can stand to benefit by becoming their guardian.
Don't underestimate just how important this will be to this child. He or she may be accustomed to waiting for certain things to happen in their life. For example, think about if he grew up in the foster care system. In that case, he would be used to needing to wait for other people to make decisions about where he went to school, or even whether he could do certain things socially. Now that you are becoming his guardian the buck stops with you. You can intercede and make decisions much more efficiently for him. This will help him tremendously when it comes to being able to act independently.
Be prepared to go the distance with this child
One of the factors that some people do not fully consider when becoming a guardian is just how long the guardianship may last. In many cases, you will need to remain as guardian until the child turns eighteen years old. In other situations, if you have become the guardian of an adult, that guardianship may last until he or she passes away. The point is that you have to consider just long this relationship may last and whether you have the patience, time, and financial stability to take on everything which comes with it.
Your relationship with the child may be more so as a friend than anything at this stage. Taking him to the movies, out to dinner, or even helping him with homework assignments is not out of the ordinary for a person like you to be assisting a child with. However, when you are trying to become the guardian of a child that steps up the responsibility level dramatically. You are now obligated to perform those sorts of activities and more. The day-to-day care of care, emotional support, financial support, and decision-making for all areas of his life are the rights and duties which you are taking on. This is not something to be underestimated as far as the responsibility is concerned.
This is also a process that will require that you go through the probate court to be able to begin the process and ultimately move forward when it comes to becoming the guardian of an adult with physical or mental difficulties, for example. A probate court would keep tabs on the situation involving you and your ward. The ward would no longer have certain legal rights to make decisions for himself and instead you would gain those rights as his guardian. Providing for the adult's food, clothing and shelter are basic responsibilities that you would be asking the court for. Importantly, there are financial concerns that a court would likely have you take on as guardian, as well.
There is day to day matters related to the well-being of the ward such as caring for his housing and medical situation as well as long-term planning issues such as determining how to structure his finances and estate. If you have questions about how these areas interact with one another but also with how they differ from one another then you should reach out to an experienced guardianship attorney with the Law Office of Bryan Fagan. We can provide you with guidance on how to move forward to prepare for the responsibilities of guardianship which you may not have previously been anticipating.
What if a person is disabled but not incapacitated?
When we talk about incapacity leading to guardianship there are some important points that I would like to make. For one, being disabled is not the same thing as being incapacitated. A person can be disabled or have various incapacities without being incapacitated. Incapacity means lacking the ability to exercise control over your life and your decision-making. This occurs in extreme situations where this capacity is taken away because of an injury, illness, or other circumstance arising. When a child has lived with you for an extended period then you may be able to seek custody rights over the child as well as guardianship.
What other avenues are there besides becoming the guardian of a child?
You should not view becoming the guardian of a child as the first option to choose from when it comes to helping him. Rather, you should consider the other ways that you may be able to aid this person without becoming his guardian. For example, if this person receives Social Security benefits, then you may be able to act as his representative payee. This means that the benefits he receives will go through you and you will be in a legal position to be able to help him use that money in whatever way is in his best interests.
Something we talk about a lot here on the blog for the Law Office of Bryan Fagan is having power of attorney over another person in certain situations. If you have a family member who is incapacitated, then you would not be able to set up power of attorney rights for you. That is because the person who is the subject of the power of attorney would not be able to understand what is happening and could not set up power of attorney privileges for you. However, if you can work with him before he becomes incapacitated then this may be something that becomes a viable option, as well.
Whatever government benefits that this person receives may be able to go through you as his representative. You can contact each of these public benefits directly to determine the extent to which you can act as their representative. When you help this person with their food stamps, Medicaid, or other government benefits you may find that you do not need to become their guardian.
What do you need to do if a guardianship is the best option?
Hiring an attorney will be necessary in a guardianship proceeding given that you can represent your interests in court but cannot represent those of another person. An application for guardianship will be filed with the county or district court for your jurisdiction. Next, a doctor will be appointed to your case who will perform a physical evaluation of the child to determine whether he or she is incapacitated. Any people who are immediate family members of the proposed ward must be notified of the pending guardianship proceeding.
The court will appoint a guardian ad litem to oversee the case as far as representing the best interests of your proposed ward. The ad litem, you, and your proposed ward will attend a court hearing to make arguments to the judge as to why the guardianship is necessary. If you are successful in being appointed as guardian of another person, then you will have up to 20 days to sign a document that states that you will perform all the necessary functions of a guardian. As part of the process, you can be removed as guardian if you do not fulfill all of those responsibilities. Foremost among the reasons why you may have your guardianship rights would using your ward's money for your gain.
What it means to be someone’s guardian
This is not a passing responsibility or something which applies to you today but may not tomorrow. Rather, a guardianship is a serious legal matter which involves taking on fiduciary duties. A fiduciary is a person who is legally bound to put the best interests of another person ahead of their own. For any parent out there, who is reading this blog post this should sound very familiar. Be prepared to take on a massive amount of responsibility with relatively little in the way of gain for you. Out of the kindness of your heart or the magnanimity of your person will you be taking on these responsibilities, in other words?
Keep in mind that you will have responsibilities towards this person until the probate court tells you otherwise. This could last for a few years, many years until the person dies or even past his or her death. The big thing to keep in mind is that you have these responsibilities and options ahead of you as far as representation is concerned. With liability both from the criminal perspective as well as civilly, you do not want to put yourself in a position where you are biting off more than you can chew. Even if you think that you understand everything there is to know about these responsibilities there are still questions which may keep you up at night. You need to answer those questions before agreeing to become a guardian.
Once you go through with a hearing to become the guardian of another person then you will still need to follow up and make sure that you are qualified as the guardian. Signing a document known as an "Oath of Office" is the best place to start with this. A court may require you to turn over a certain sum of money known as a bond before being admitted as the person's guardian. This needs to be done within twenty days of your appointment. If you do not do so within that amount of time, then your appointment may be put aside.
If you can follow through with these steps after your appointment, then you can obtain a letter of guardianship from the clerk’s office. These are important letters that you can use to send to doctor’s offices, government entities, attorneys, and others as proof that you are the guardian of this person. You will be responsible for renewing these documents each year by providing an accounting of the prior year and a report to summarize how your ward is doing and any major events that have occurred in the past year.
What goes into the annual report?
When you turn in your yearly guardian report that means that you will need to file the report within sixty days of the anniversary of your appointment as guardian. You can file this report with the assistance of an experienced guardianship attorney but may also do so without representation. You can contact the court to see if any extra forms may be needed if you plan to file the report pro se. This is an important responsibility, and it is not optional. There are consequences for your failure to file the form so please be sure to work with an experienced attorney if you have any questions about how to proceed or what to do.
If you become the guardian of a minor child, then that guardianship will close on the eighteenth birthday of the child- unless your appointment documents say something different entirely. Other scenarios that would spell the completion of the guardianship would be if your ward passes away or if your ward regains the capacity to care for themselves and the court determines that your guardianship is no longer needed. When you close out the guardianship be sure to check with the court to see if you need to apply to close it out as well as return any property of the ward which is still in your possession.
What responsibilities do you have in relation to the creditors of the ward?
Once you become qualified as the guardian of your ward then you need to file a general notice to creditors of your ward’s estate. Any person or entity which has a claim for money against the estate must be provided with notice of these letters having been issued by a court. If an unsecured creditor files a claim within four months of receiving notice of the guardianship appointment, then a claim for money will be honored. If not, any future claim by that creditor will be barred.
Final thoughts on guardianships
There are many moving pieces involved with guardianship. Not only do you need to be aware of the legal processes as far as getting appointed as a guardian, but you also need to focus on the responsibilities the position entails and the post-appointment reporting requirements. All the while you have the emotional and logistical elements of a guardianship with which to concern yourself, as well. All in all, this is a huge undertaking and one that you need to be prepared for before entering into.
It is normal to have questions or even doubts about whether a guardianship is for you. If you have any questions about the material contained in today’s blog post, please consider working with an experienced guardianship attorney. You can ask questions and receive real-world feedback from one of the attorneys with the Law Office of Bryan Fagan if you follow up with us here after reading this blog post. Thank you for your time and we hope that you will reach out to us in the future with any questions you may have.
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