Guardianship vs. Parental Rights: What Should You Know?

If you have children, your primary responsibility as a parent is ensuring that you are there to care and provide for them. However, unfortunately, there are circumstances in life (such as incapacitation or death) that can leave you unable to care for your children. This unfortunate fact highlights the need to appoint a legal guardian for your children should you become no longer able to care for them yourself.

What Does a Legal Guardian Do?

While it may be saddening to think about, if you were to find yourself unable to care for your children, it is in your best interest to nominate a legal guardian for them. If you do not, ultimately, the court will decide who will care for your children – a scenario you’d likely want to avoid.

A legal guardian is someone who is not a child’s biological parent, but performs many of the same duties as a parent to ensure their safety and care. This can include caring for the child or children financially, making sure the child/children’s medical needs are attended to, making educational decisions for the child/children and much more.

Who Can Be a Legal Guardian?

By creating a guardianship, you will be able to choose the person or people who will take care of your children in the event you are no longer able to do so. Ultimately, while this may seem obvious, you will want to choose a person or several people who you know can be trusted with ensuring the safety and wellbeing of your child or children.

Are Guardianship Rights Different from Parental Rights?

As a parent, you currently act as the guardian for your children. Only in a situation where you lose the ability to care for your children will a guardian have the rights to make decisions regarding their care. Additionally, included in your will or in a trust, you can mandate how you want your children cared for and how you would like any financial matters involving your children to be handled.

What is the Difference Between Guardianship and Adoption?

Due to the similarities between what a parent provides for children and what a guardian does, people often confuse guardianship with the adoption of a child/children.

Both adoptive parents and legal guardians are responsible for acting in the best interests of the children and making sure those children are fed, clothed and otherwise supported in various ways.

But while similar, adoption and guardianship are not the same. Guardianship is designed to provide temporary care for children in situations where the children’s parents can no longer care for them. On the other hand, adoption is the legal process of becoming the parent to those children, and the adoptive parents have all the same rights that biological parents do.

What Happens if You Do Not Choose a Guardian for Your Children?

By not choosing a guardian for your children in the event of an emergency, you lose the power to have your child cared for by someone you trust. Ultimately, your child/children’s fate will end up determined by the court system.

Selecting a guardian for your child or children in the event of you losing the ability to care for them is critical for any parent. As a parent, you want to make sure that your children are properly cared for, and grow up in a loving and supportive environment.

If you need assistance with your guardianship matters, or any other estate planning matters, contact us today. For more information about various estate planning topics, view our resources page here.

Image by Mohamed Hassan from Pixabay

About the Author

Alyssa Marie Monteleon, Esq.

Alyssa Marie Monteleon is an elder law and estate planning attorney at the Monteleon Law Group, PLLC with offices in New York and Virginia. For more information, please visit or call (914) 840-2529.

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