Benefits of formalizing guardianship of grandchildren
July 20, 2012
I often assist grandparents (or other family members) who need guardianship of minor children.
Grandparents raising grandchildren is one of the fastest growing segments of our population. This can be a difficult and taxing process, emotionally, physically, and financially.
From a legal perspective, there are two types of guardianships involving children. The first is an informal, temporary guardianship.This is where a parent voluntarily signs over custody of the child to another, but it never goes before the court.
The second is a formal court-ordered guardianship. It requires either a finding by the court that the parents are unfit, or the consent of the parents. It places the guardian in the role of parent, with all the responsibilities to provide for the child-and all the benefits of raising the child. I am often asked why use a formal, court-ordered guardianship when there is the informal process?
First, when a parent signs a temporary guardianship form it automatically expires after six months. It can also be revoked at any time for any reason. That means the parent can come back and take the child without addressing any of the concerns leading to a guardianship, such as their drug use. With a court-ordered guardianship, the parent must show that they have remedied those concerns before the court will give the parent custody of the child.
Second, a temporary or informal guardianship may not give you the authority you need to provide for the child’s health or educational needs. Often the immediate reason to formalize a guardianship is because the school or doctor will not accept your authority to make decisions on behalf of the child. A formal court-ordered guardianship gives you the clear authority to make decisions on behalf of the child – from what school to go to, to what sports to play, to what medical procedures to have.
Third, a temporary or informal guardianship does not give you the ability to claim the child for tax, insurance, or child support purposes. This means that, even if you have provided for every need of the child, the government will not recognize the child as your dependent. You will not get the benefit of the tax deduction, nor can you have child support from either or both of the parents directed to you to help pay for the child’s care. It also means that you cannot add the child to your health insurance. However, a formal court-ordered guardianship will allow you claim the child for taxes, obtain their child support payments, and add them to your health insurance. A court-ordered guardianship recognizes that the child is your legal responsibility, and therefore you should also get the legal benefits of any tax deduction, child support payments, or insurance benefits.
A court-ordered guardianship has many benefits that a temporary, informal guardianship does not. Going to court may seem daunting or overwhelming, but it is often the best thing you can do for your grandchildren.
The census bureau has a collection of web resources at http://www.usa.gov/Topics/Grandparents.shtml that can help you with some of your other needs.
But, importantly, if you know a grandparent raising their grandchild: take the time to offer help, whether it is some baby sitting, or hand-me-downs; they need your support just like any parent does.
Cassandra Jones is an elder law and family law attorney in Gardnerville. She can be reached at 782-0040.