Even if you were to seek out the advice of an attorney, your legal decisions are still yours to make. There are many people, however, who aren’t capable of making these choices on their own. In these cases, a family law guardianship can be established that allows an individual to make legal decisions on another party’s behalf.
A legal guardianship arrangement can be instituted by either court order or via decision by an adult with the authority to make such a selection. This occurs in order to safeguard the legal rights of individuals that typically can’t make decisions in a court of law. A family law guardianship can be established in a variety of instances.
Children: Minor children have a variety of rights, but they’re incapable of making important legal decisions. An adult is often assigned to ensure the child is protected physically and financially.
Incapacitated Seniors: An adult guardianship can be established for a senior citizen who can no longer make important decisions for themselves. This can be related to disease or injury.
Incapacitated or Developmentally Disabled Adults: Old age isn’t the only situation where an adult may not be able to make their own legal decisions. Developmental disabilities or serious injuries may also necessitate a family law guardianship.
Being given legal guardianship of another person may sound simple on its face, but it’s actually a very complex process. You should seek out legal representation before making any big decisions on this front, but establishing a basic understanding of this arrangement can give you an idea of what’s to come.
Family Law Guardianship Rights/Responsibilities
If you’re granted guardianship over another person, you have the right to make important legal and financial decisions on their behalf. It’s important to note that courts may require a conservator to seek judicial approval before making certain decisions, but this is only one of the many responsibilities faced by those who are granted guardianship.
Responsibilities of Conservators
Frequently asked Questions
What is a Guardian?
A guardian is typically someone who is appointed by the biological parents of a child. The guardian is to take care of the child if the biological parents cannot. A family law judge can appoint a guardian for the child if the judge deems the biological parents unfit. The judge appointed guardian is often a grandparent but may also be a family friend.
Can I force the biological parents to make me a guardian?
It is rare for a judge to make a ruling that a child will be removed from their parents. You would have to show that there is neglect, the child has been abandoned or that there are other issues that would seriously impact the child.
Also, you would have to prove to a family law judge that you are the best guardian for the child.
It is possible to do, but not easy. We recommend you have an extended consultation with one of our family lawyers.
Can I appoint a guardian for my own children?
Yes, our family lawyers can help you with that.
Appointing a legal guardian for your children should be addressed in your will. This can prevent confusion or litigation if something happens to you and it is unclear who should take care of your children. Speak to a family lawyer so that you are not leaving a legacy of issues and court battles. You want to be remembered by your children for being prepared.
It is critical that you pick a guardian that you have known for a long time and that you trust. An amendment to your will can enable this person to make decisions for your child or children if something were to happen to you. The guardian and your child should know each other well and hopefully get along. This can help to assure you that your children’s emotional needs, and not just their financial needs, will be met.
It is possible to choose a different guardian for each one of your children or one guardian to take care of all your children. A guardian can also be a group of people, such as a married couple.
Who can be a guardian?
Anyone can start an application to become the guardian of a child. Parents and family are often preferred over non-family members. If the biological parents do not agree on you becoming a guardian, you can expect a long and expensive court battle. You will also need strong evidence that the parents are neglecting the child and that you would be a better caregiver. It may be a good first step to speak to a private investigator, who can help you retrieve evidence of neglect. Our family law firm may be able to recommend one for you.
Our family law firm often gets asked if a lawyer is necessary to resolve child or spousal support agreements. We suggest, at minimum, booking a consultation with a family lawyer before signing any documents.
Even though it is possible to sign or agree on spousal support without a lawyer, it is important that both parties understand their rights and obligations.
There are three different ways to book a consultation with our Toronto family lawyers:
Guardianships vs Adoptions
When it comes to minor children, many individuals believe adoption and guardianship are the same thing. In reality, these are two very distinct legal terms which each have their own nuances. A significant difference relates to permanence. Whereas a family law guardianship of a minor is usually temporary, an adoption is permanent.
What is Adoption?
When someone adopts a child, they are legally viewed as that child’s parent. If a biological parent has given up or lost their rights, they no longer have any duty to provide financial support or care for the child in any way. Unless a will is in place, the minor also loses any rights to the biological parent’s assets.
Since a guardianship is usually temporary, the biological parents still maintain a legal relationship with their child. This arrangement only means that the conservator can make certain decisions on the child’s behalf. When the guardian is granted legal and physical custody of the child, they take on many of the same responsibilities (e.g. providing food, shelter, clothing) as an adoptive parent would.
A family law guardianship with a minor can end in several ways. If one of the following events occurs, the legal relationship is dissolved.
- Child turns 18 or the locality’s statutory legal age
- Assets are exhausted (this only occurs in guardianship instances based solely on finance management)
- Death of the child
- Guardianship dissolved by court order
None of these events would end the legal relationship between an adoptive parent and their child.
Parents in Need of Guardianship
A biological or adoptive parent would typically have no need to set up a family law guardianship. In rare instances, however, this does become a necessity. This is commonly seen when a child receives a large amount of money or property.
Courts are hesitant to simply give a child’s property to their parents, but it’s also understandable that a five-year-old minor doesn’t need access to $10,000 left to them in a will. In these situations, a guardianship can be established so the parents can manage the assets but still be required to account for their actions.
Adult guardianships are different than those related to minors, even though they serve many of the same purposes. If you’re considering an adult guardianship, you should know the three types of arrangements.
Guardian of the Estate: The conservator has responsibility for the ward’s assets. This will include handling property, bank accounts and tax filings.
Guardian of the Person: The conservator will handle an incapacitated person’s medical needs. This includes dealing with health insurance, medical bills and setting up appointments.
Plenary Guardian: This family law guardianship relationship puts the conservator in charge of the ward’s medical and financial well-being.
Family Law Guardianship Attorneys
If you are involved in a situation that may require a family law guardianship, you should get legal assistance immediately. Guardianship laws are quite complex, and if you try to navigate the system alone, you may end up with unnecessary legal arrangements or spending money on redundant court filings. It’s best to get legal guidance from the start to ensure everything is in order.