Guardianship Has Benefits
Video Transcribed: I want to talk to you a little bit about when you might want to seek out guardianship. One situation where you would want to consider guardianship is in terms of if you are a parent, and you’re making plans for what should happen if the worst happens and you should pass on while your children are still minors. This is something you can do in your will.
Now, if you’re married, your will should specify… You and your wife should have a will that at the very least specifies what happens to your children in the event of your passing. Title 43 actually does provide for a list of priorities in the event of the unavailability or passing of a parent. And an appointed guardian in the parents’ will get high priority, although they do still have to apply to the court to actually get appointed guardianship. So that’s one situation.
Another situation is if you are looking at a potential deprived case, that is if there are circumstances where a court might intervene on behalf of your children because of some kind of a child welfare situation. For example, if DHS is investigating you, and you’re looking at potentially either a failure to protect or neglect or abuse, and it’s very likely the child will be taken out of your care and placed as a ward of the court with foster care, it is advantageous in that situation if you have like a grandparent or some other adult within your family who is not unfit and not unacceptable to go ahead and apply for guardianship.
And the reason is the advantage of guardianship over having your child in deprived is that in deprived court, there are very specific statutory deadlines, where you need to basically correct the conditions that led to the deprived case being opened. Should you fail to do so, you could be looking at a situation where your rights to your child are terminated permanently, and that doesn’t just mean you can’t ever have custody of them again.
Understand that if your rights are terminated, that means you have no right to visit, and you could still be on the hook for child support, by the way, too, if the child hasn’t been adopted. So you could end up paying for a child you have no right to have any contact with whatsoever.
Guardianship has no such statutory deadlines. If the child’s in guardianship, as long as you maintain contact with the child and have some kind of visitation and are paying child support if you’re ordered or supporting the child somehow, there are no hard and fast deadlines as to when you might have to correct the conditions to avoid having your rights terminated.
The only way that your rights would be terminated in that situation is if you just lose contact or if you’re not supporting the child financially. So as long as you meet those two basic standards, which are a lot easier than trying to complete a treatment plan in deprived court, you can keep your rights.
If you fail to complete the reunification plan on a guardianship, it just means the child stays in guardianship. So if you are looking down the barrel of a potential deprived case, guardianship could be a way to avoid having your rights to your child jeopardized. Now, there is a trade-off for that, because in guardianship court, unlike in deprived court, if you’re in deprived court and you’re given a treatment plan, DHS is required to afford you certain services towards completing that treatment plan at their expense.
If you’re in guardianship, it’s at your expense. So there is a trade-off there, but the advantage is that you are in less jeopardy of having your rights terminated to your child. You get more time to complete your reunification plan in guardianship court.
And as I mentioned in previous videos, guardianships are inherently considered temporary. So there is a certain advantage, especially if you’re in a position where it’s some kind of a situation where you are not going to have an easy time completing a treatment plan, then you’re better off to be in guardianship than in deprived court. So that is one instance where it can definitely help protect your rights as a parent if you are facing that kind of a circumstance.
And as I mentioned earlier, if you are looking at a situation where… Well, if you are a parent, you have rights, either you’re married or you’ve established rights through paternity proceedings. You definitely should have some provision for guardianship for your child in your will. Another situation where guardianship could be helpful as well is if you need to voluntarily place the child out of your home for one reason or another. The guardianship allows the guardian to exercise certain authority over the child, without you needing to approve it first.
So for example, let’s say that you have a child, which you wish to send to like an educational program somewhere out of state, and it would be an inconvenience to you to have to constantly go there if there is some kind of like a medical release needs to be signed or something like that, you might look at a point if you had a relative nearby or some other trusted adult, you could appoint that person as guardian of the child, and they would then have that authority.
If you find yourself coping with a situation that makes it difficult for you to care for the child, you have serious physical disabilities, you have some kind of a mental health issue, or some other disability that is going to prevent you from caring for the child, doing a guardianship can keep you out of deprived court.
And we talked about that earlier, but again, this is something that can be used as a tool to avoid a problem where you end up in deprived court and to make it easier for your child to be looked after.
Obviously, it does come at a cost. You definitely do not want to go to guardianship court without a lawyer and a good one. And if you are doing a voluntary guardianship, you want to be sure that the scope in terms of that guardianship is outlined in such a manner that you can get your child back with a minimal amount of difficulty when you determine that you are ready to resume your duties as a parent. But these guardianships do have benefits that can help a parent who is struggling or who is looking down the barrel of a potential deprived situation.