Guardianship/Adoption

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Guardianship

Guardianship is the process in which the legal right to care for someone is transferred to another person. Guardianship is closely associated with conservatorship, which gives a person the responsibility to manage another person’s financial affairs.

When Is Guardianship Necessary?

The three most common scenarios for guardianship in Idaho are as follows:
An elderly person no longer has the capacity to care for himself or herself
A special needs person has attained the age of eighteen but cannot assume adult responsibilities. A minor child’s parents cannot care for a child

What Do I Need to Do to Get a Guardianship?

Guardianship requires approval from a court and courts take this responsibility very seriously. In fact, before a court grants a guardianship, a court must make specific findings that the guardianship is in the proposed ward’s (a ward is the person seeking guardianship) best interest, and that the proposed guardian is both willing and capable to care for the person seeking guardianship. Depending on the situation, it is common for courts to order the following things to occur:

  • Home Visits
    An attorney called a guardian ad litem to represent the interests of the proposed ward. This attorney is usually required to make a written report documenting his or her findings and recommendations.
  • Doctor Evaluations
    Idaho courts are careful to grant guardianship in a manner “so as to encourage the development of maximum self-reliance and independence of the incapacitated person, and make appointive and other orders only to the extent necessitated by the incapacitated person’s actual mental and adaptive limitations or other conditions warranting the procedure.” Idaho Code § 15-5-304. Idaho courts take this requirement very seriously. Prior to granting a guardianship, judges carefully review the guardianship paperwork and typically ask many clarifying questions at hearings for guardianship. A hearing is required. Because conservatorship is typically part of guardianship, the paperwork and court hearing will likely deal extensively with the ward’s financial affairs as well.

Special Considerations Related to Guardianships

Avoiding Guardianship of an Elderly Person

It is possible to avoid guardianship and conservatorship in circumstances relating to the elderly by planning well in advance with a sound estate plan. This can occur when a person places his or her assets in a living trust and designates someone to make financial and medical decisions in financial and medical powers of attorney.

Special Needs Adults Should Have a Guardianship in Place

Many parents are surprised to find out that they need to obtain guardianship and conservatorship for their special needs children when they reach 18 years of age. Oftentimes, parents will be able to continue in their duties without question, but legally a special needs person is entitled to the same rights as any other adult upon reaching the age of majority. It is important to establish proper guardianship and conservatorship when your special needs children reach the age of majority, to ensure parents maintain legal authority and responsibility for things such as directing finances, education, medical care, and living arrangements.

Grandparents With Guardianship of Minors

Idaho law has multiple resources in place for grandparents (and sometimes siblings or other family members or friends) who are caring for their grandchildren. In some cases, grants are available to assist with the financial difficulties associated with caring for grandchildren.

Avoiding Litigation in the Event of the Untimely Death of Parents of Minor Children

If you and your spouse pass away prior to your children reaching the age of majority, you can avoid costly, and sometimes heartbreaking, litigation by simply creating a will or trust designating who should be the guardian of your children in the event of you and your spouses’ deaths. Many people fail to realize the importance of this provision when considering whether to have a will or trust drafted when they are younger and still have children at home.

Adoptions

Stepparent Adoptions

These are common adoptions which occur when one parent has remarried and the new spouse is interested in treating the child as his or her own child.

Putative Father Adoptions

Idaho Code § 16-1513 requires a person who claims to be a father of a child born out of wedlock, to make a filing with the State of Idaho in order to preserve his claim as father.

Grandparent Adoptions

These are becoming more and more common and occur when grandparents adopt grandchildren. Resources may be available in some circumstances to assist grandparents who are involved in grandchild adoptions. Agency adoptions are very common and occur when an agency (private or state) assists birth parents in connecting with adoptive parents.

Adoptions Involving the Indian Child Welfare Act

The Office of Indian Affairs states on its website that “The purpose of the Indian Child Welfare Act (ICWA) to protect the best interest of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture.”

What Is Involved With Adopting a Child?

Each adoption is different and adoptions often have varying requirements depending on the type of adoption that is occurring. However, all adoption cases must go through the courts and require an appropriate petition to be filed.

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