What is legal guardianship?
A legal guardian is an individual who assumes the responsibility for a child until that child reaches a particular age. This is not to be confused with the role of a foster parent. A legal guardian assumes all of the custody and control for the child. This means that the guardian can delegate the authority to family members or friends to assist the guardian in fulfilling his/her legal responsibilities to care for the child and make important decisions affecting the child.
The circumstances of each case will determine whether one or both of the parents have lost their legal right to their child, or if the parents have voluntarily relinquished their parental rights based on the current needs of the child . Either way, the legal guardian has full custody of the child and is responsible for the health, education and welfare of the child while the child is under the guardianship.
The court will appoint a legal guardian in the following circumstances:
In all cases of legal guardianship, the court will require a home study to ensure that the appointed guardian is capable of caring for the child – physically, emotionally and financially. The court will also retain jurisdiction of the guardianship until the child becomes eighteen (18) years old.
What is a foster parent?
A foster parent is a person who cares for someone’s child temporarily while the child awaits placement with his or her legal custodian. Often, that legal custodian is a local governmental authority (Department of Children and Families), but not always. Before becoming a foster parent, a putative "real" parent undergoing dependency proceedings usually must consent to the placement of his or her child within the Florida foster care system. Other times, parents will voluntarily consent to have their children placed in foster care.
When local governmental authorities such as the Department of Children and Families remove a child from the biological parent’s home, the biological parent may agree that placement within the foster care system is in his or her child’s best interest. The parties may enter into a Voluntary Placement Agreement (VPA). A VPA allows parents to voluntarily place their children in foster care.
Foster parents are recruited, licensed, and trained by local governmental authorities such as the Department of Children and Families. In addition to parent consent, dependency proceedings may be initiated to place a child in foster care. When children are removed from the home by local governmental authorities, a shelter hearing is often scheduled. If legal custody over the child is given to the local governmental authority, the child may be placed in foster care.
Foster care placement may be arranged in a different county from where the child originally lived. Thus, parents may be separated by miles from their child. Most local governmental authorities have a network of foster parents throughout the state. The goal of placing the child in foster care is to reunify the family and return the child to his or her biological residence. When circumstances allow, parenting time between the child and his or her biological parent is arranged.
Foster parents should be aware that, unlike guardianship with its long-term/forever commitment, the placement of a child in the foster care system is always temporary.
Legal Authority of Guardian Versus Foster Parent
When it comes to the authority over the child in their care, the legal differences between a foster parent and a legal guardian add up to quite a bit. The foster parent does not have legal authority to make medical or educational decisions for the child in their home. A legal guardian has full legal authority over any and all decisions made for his or her minor child. Often, once the legal guardianship is established, the child cannot be separated from the guardian without some form of judicial interference. The foster parent is merely a caretaker for the child until a judge determines where the child shall reside. One major way foster parents assist the courts and the judicial system is by offering the child a safe place to live while the family unit is being inspected, rebuilt and/or scrutinized by the court. The authorities have a limited time to complete their investigation and determine a permanent residence for the child. Only then does the status of the child become permanent rather than temporary. In contrast, a legal guardianship can be established for the child until the child reaches the age of adulthood or until a judge determines that the guardianship can be dissolved for any reason. Guardianship of the person allows guardians to help decide what is best for the child in all situations, whether that involves a medical emergency or placement in the best school available for their needs. You have rights and options when it comes to the welfare of a child, whether you are a biological parent or you are a foster parent or legal guardian.
Emotional and Financial Obligation
With regard to emotional responsibilities, a guardian has considerable choices as to how they manage the well-being of the child. The guardian is not required to make any legal or medical decisions without specific court authorization. They can work with the State of Florida to modify the decisions made by the court if necessary. Moreover, the guardian has certain protections from liability due to decisions they have made on behalf of the ward. Foster parents do not have this level of discretion, emotional or otherwise. Any decision made by the Department of Children and Families (DCF) is binding on the foster parents until DCF agrees it is not in the child’s best interest. Each decision is reviewed by at least two DCF employees and there is an opportunity for an administrative hearing if the foster parent does not agree with the decision.
The financial responsibilities for guardianship and foster parenting are also very different. There is a statutory list of expenses that can be requested of the court for a guardian. Financial obligations include: housing, food, care, clothing, medical treatment, and safety of the ward. However, guardians need not contact the court for permission to use funds under their control for these expenses. In fact, the court prefers guardians to not file requests for most expenses. Foster parents will receive a monthly payment to pay for the needs of the child. The amount is determined by the age and need of the child but typically ranges from $9-$21 per day. DCF also provides the foster parents with funds to help pay for school expenses and start-up items for each child.
Affects the Child’s Life
Especially when dealing with minor children, the stability of where they live and who they live with are of paramount importance. A foster child might move several times a year to different homes as the different foster parents come and go. A child with a legal guardian will have a much more stable existence under the supervision of their either aunt, uncle, older sibling, etc., or, if they are older , a legal guardian appointed by a judge. The important aspect of the existence of a legal guardian is that the authority is with respect to planning for the future. Because it is a permanent result of a court action, living with a legal guardian can give a child not only the stability of a permanent home, but also consistent parenting and securing the child’s long-term future when that is desired.
Legal Process for Appointment
The legal process for appointing a legal guardian begins with the filing of a petition with the probate court. The petition may be filed by a concerned adult, family member or an interested party. A hearing will be set, and the Court would appoint an attorney to represent the alleged "incapacitated person". The Court would then hear from an individual licensed by the State of Michigan to examine persons for mental incompetence. That person would individually interview the "incapacitated person" and submit a report to the court, which would include medical evidence of incapacity, if available at the time of the report. Following that hearing, the Court would determine whether it was in the best interests of the alleged person to appoint a guardian. If they determine a guardian is needed, the guardian would be appointed and given full authority over the decisions of the now "incapacitated person".
In contrast, Foster Care usually involves a child’s father or mother to take some action to petition the court for a "Show Cause Hearing". The term "Show Cause Hearing" refers to the point in time where a hearing is conducted to show cause why the individual should be held in contempt of court for not following court orders. At this hearing, there is always a trial judge who will determine if the child(ren) should remain in the current placement, or determine what action should be taken when parents are non-compliant with court orders. The intervention usually occurs when one of the parents has a substance abuse issue, or other issues that result in the child being taken away. It is a lot less formal, and "in-control", than when a person is elderly.
Pros and Cons of Legal Guardians and Foster Care
Legal guardianship and foster care both serve to provide stable homes for children temporarily or in some cases, long term. For those looking to assist children in need, it is important to understand the advantages and disadvantages of these arrangements.
For the Child
Pros
Cons
Independence – A child under guardianship may learn independence as an adult. While a foster home can provide the same opportunity, this scenario occurs with more frequency among legal guardianships, which can end at age 18.
For the Caregiving Adult
Pros
Cons
Financial Assistance – Foster parents may also receive monthly financial payments to assist them in caring for the child who has been placed in their home. Guardianship generally does not have such payments available.
Choosing Between Guardianship and Foster Care
When it comes to choosing between legal guardianship and foster parenting, there are several factors that must be taken into consideration before making your decision.
While all of us want to help assist children in need, you must first weigh the pros and cons of each option and decide what is in the best interest of your family. A good place to start is by seeking the advice of a trusted legal guardian and/or adoption lawyer. Not only can they shed some light on how the process might work, you can get an inside look at both the upsides and downsides to being a legal guardian or foster parent. As mentioned above, your attorney can also answer legal questions you may have about the process. Once you have a good understanding of the options available to you , start talking to your loved ones about the idea. Foster parenting and becoming a legal guardian are both big responsibilities, and your family should be on the same page when it comes to caring for children in need. When making the decision, ensure that your children understand that they might be taking care of their new family member, but that you will always be there to handle the larger responsibilities. There’s a lot to think about before you move forward with either option. Legal guardianship might require a little more planning than foster parenting, but both options are valuable for those seeking to help children live better lives in a more stable environment. With the right steps, guardianship might be the best choice for you, but it’s important to learn everything you can about both options before making your decision.