Sometimes we find ourselves in situations that we did not plan. Unexpected death or incapacitating illness may keep us from caring for our children. Mental illness, drug addiction, a prison sentence, or general incompetence can all leave our child with no caregiver. Because no one knows what the future holds, it is crucial to name a guardian for your child.

According to the US Department of Health and Human Services, “Legal guardianship is one of the options available to parents who are planning for the care of their children in their absence due to a variety of situations, such as illness or incarceration.”

Absent Parent

When there is a situation that keeps you from doing the daily care for your child, social services may get involved. If you have named a power of attorney caretaker or a standby guardian for your child, you may not need to see the inside of a courtroom. However, if you have not worked with an attorney to make a plan for your child’s future, social services and the courts may have their say. In most guardianship cases where the parents are alive, the court does not terminate the parents’ legal rights, and they may still play a role in their children’s lives. 

If the county assesses the need for a guardian because of a child’s health, safety, or best interests, they may look at relative or kinship placements. The child’s birth father or paternal family may provide a permanent home. North Carolina law requires the judge who orders a child’s placement or continued placement to consider whether an appropriate placement with a relative is available.

If a judge finds that a relative is willing and able to provide proper care and supervision in a safe home, the judge must order placement of the child with the relative. The court may deem a relative or any other person suitable for the role of legal guardian. Other than relatives, the court may consider foster parents or adults who have a kinship bond with the child, even if they are not related by blood.

When Does the Court Appoint a Guardian?

In many cases, if family members are not willing to adopt your child, they may serve as a guardian instead. Social services consider guardianship only when permanent reunification is impossible for you and no one to adopts your child.  

According to the Child Welfare Information Gateway, Social Services looks at guardianship as a possibility when:

  • The permanent plan for the child is not reunification nor adoption.
  • The caregiver is willing to assume guardianship of the person of the child.
  • Continued placement with a caregiver would be in the best interests of the child
  • The child has been in agency custody for at least a year.
  • The child has lived with a provider for at least six months.

A Guardian’s Job

A guardian appointed by the court or social services operates with the supervision of the court and files reports as the court requires. A guardian of the person has the care, custody, and control of the child and may arrange a different care arrangement for the child at any time. 

The guardian may also allow the child to:

  • Get married
  • Enlist in the Armed Forces
  • Enroll in a school. 
  • Receive psychological, medical, or surgical treatments 

When Does a Guardianship End?

The court may terminate the guardianship if it finds that:

  • The relationship between guardian and child is no longer in the child’s best interest
  • There is neglect of the guardian’s duties
  • There is an unwilling or unable guardian 
  • The guardian is unfit

Sometimes the department of social services may conduct an investigation and file a written report of the inquiry regarding the guardian’s performance. They may give testimony in court if needed to better help the court make a decision. 

How Does a Guardian Ad Litem Protect a Child?

To stand up for the child’s best interests, the court may appoint a guardian ad litem for the child. The guardian ad litem looks at the available resources and makes a recommendation to the court about what should happen with the child next.

The guardian ad litem and the court may consider the answer to many questions when determining the recommendation for legal guardianship, including:

  • What preplacement relationship existed between the child and the potential guardian
  • Does the child have any attachment to the child?
  • Have the potential guardians been carefully evaluated?
  • Is there a written assessment or home study?
  • Have the potential guardians been included in the shared decision-making process?
  • Have both maternal and paternal relatives been considered?
  • Is placement with relatives or kin a way to protect the child’s roots in the community?
  • Will placement with a particular relative mean that the child must leave the community?
  • Have sibling attachments been considered? 
  • Would placement with siblings be favorable for this child?
  • Is this potential guardian related to all the siblings, and are they willing to take all the siblings whether related or not?
  • Will this placement support the child’s ethnic and cultural identity?
  • Is the potential guardian willing to provide a home for this child through the child’s minority?
  • Are there the same issues in the extended family that existed with the parents?
  • What will be the ongoing relationship with the child’s parents?
  • Will there be lifelong conflicts with the child’s parents?
  • Is there a possibility of an unofficial return to the child’s parents?

Avoiding the Court System

Legal guardians have custody of the children and the authority to make decisions concerning the child’s protection, education, care, and discipline. It makes sense to plan for your child if you are sick and can no longer care for your child. 

Working with your attorney, you may file a petition for a standby guardian. This person is designated to become the guardian of your child if you become incapacitated or debilitated from a progressively chronic illness or irreversible fatal illness. 

In the petition to the court, you also provide the dates and source of your diagnosis. You may then rest knowing you provided a way for your child to thrive under guardianship during your illness.

According to the Child Welfare Information Gateway, “Standby guardianship differs from traditional guardianship in that the parent retains much of his or her authority over the child. Many states developed these laws specifically to address the needs of parents living with HIV/AIDS, other disabling conditions, or terminal illnesses who want to plan a legally secure future for their children.”

Plan For Their Future

Even if you are healthy and planning to live a long time, a will that names a guardian for your child is a priority that you cannot afford to neglect. Children face so much grief when their parents pass away. To grieve as a child and also live with a guardian is enough to scar a grown adult. If you make plans for your child now, there is no struggle if you pass away. Your family and loved ones all know what should happen next and do not have the added stress of difficult decisions during their grieving for you,

If you face a terminal illness that may keep you from caring for your child, there is also a legal way to declare a guardian for your child before you die. Use your strength to keep living while your child has their needs met under the guardianship of a standby guardian. We all want the best for our children, so let’s make sure they are cared for even if life changes so much that we can no longer be their caretakers.

We Can Help

Whether you’d like to draw up your will or petition for a standby guardian, we are here to help you meet the needs of your child. We want to make it easy for your to prepare for the worst even while you hope for the best. We never know what our lives have in store, but we can be ready for the challenges ahead. At Hopler, Wilms, And Hanna, our estate planning attorneys specialize in the types of issues you face as parents. Find out how we can help you today.Durham

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