Tag Archives: legal guardian

How Do I Become a Minor Child’s Legal Guardian?

guardian holding a young child's hand

How Do I Become the Legal Guardian of a Minor Child? NOVAEstateLawyers.com

Legal guardianship is a very common family law topic in Virginia. When an individual is appointed as a legal guardian, they are recognized as having the legal authority and responsibility to act in another person’s best interests, on that person’s behalf.

While you may seek to become the legal guardian of an adult child or relative who is incapacitated or otherwise unable to make legal decisions for themselves, this post focuses on the process of seeking guardianship of a minor child. Here’s what you need to know about legal guardianship in the Commonwealth of Virginia.

What are the rights and responsibilities of a legal guardian?

As a legal guardian of a minor child, you are legally responsible for that child’s safety and well-being and must manage his or her personal affairs. This typically involves assuming physical custody of the child from their natural parents, and making important decisions regarding their education, care, health, discipline, finances, and more. In other words, a prospective legal guardian must be able to provide a suitable and safe permanent residence for the child in question, and be able to provide for his or her basic needs.

Legal guardianship is not the same as adopting a child. Assuming the child’s natural parents are still alive and consenting to the guardianship arrangements (i.e. not having custody revoked as an unfit parent), their parental rights are generally not terminated. They often still have the right to participate in the decisions made by a legal guardian on behalf of the child, even if they are not physically present. This being the case, the child’s natural parents may still be involved in his or her financial affairs, including management of the child’s estate.

If there are financial difficulties for the parents and/or the legal guardian in providing for the child, the Court may or may not approve a request for relief. For example, the Virginia Kinship Guardian Program (KinGap) offers eligible families financial assistance to guardians to facilitate the care and maintenance of a child in their extended family.

Common reasons to appoint a legal guardian for a minor child

In most cases of legal guardianship, a minor child’s natural parents select the guardian(s) to ensure continued care and safety of that child when they are unable to do so themselves. A few common reasons where a legal guardian may have to step in include:

  • The death of one or both natural parents (this is typically addressed in the parents’ will)
  • Long-term illness of one or both natural parents
  • Incarceration of one or both natural parents
  • Addiction recovery/rehabilitation of one or both natural parents
  • Other extenuating circumstances wherein the natural parents’ home is unsafe or unfit for the minor child (e.g. civil or political unrest in their home country)

If parents have not appointed a legal guardian for their minor child in these circumstances, it’s possible that the child could go into the foster system. Legal guardianship, particularly by a relative of the child, is generally preferred to foster parents: Research shows that children who live with relatives are more likely to enjoy their living situation and feel loved/cared for, and are less likely to have behavioral issues than children who are placed into the foster care system by the state with non-relatives.

How to petition for guardianship of a minor child

If you are petitioning to be appointed as the legal guardian of a minor child in Virginia, here are the steps you will need to take with your local Circuit Court for an uncontested case*:

  1. Complete, sign, and notarize a Petition for Appointment of Guardian(s) of a Minor. This form establishes your intent and reason(s) to assume guardianship of the minor child and confirms that you are a suitable caregiver. If natural parents are living, they should also sign and notarize this form. Minor children over the age of 14 may sign the Petition for their own guardianship appointment as well.
  2. Obtain completed Exhibits from the child’s natural parents, including a copy of the child’s birth certificate and a letter of consent from the natural parents supporting your Petition (or certified copies of the parents’ death certificates if deceased).
  3. Complete, sign, and notarize a Consent Order for Appointment of Guardian(s) of a Minor. Be sure to leave space for a judge to sign and date the order. Living natural parents and minors over the age of 14 should also sign and notarize this form.
  4. Complete a Cover Sheet for Filing Civil Actions (Form CC-1416). Also known as the Virginia Civil Cover Sheet, this form is required to file any civil case in a Circuit Court in the Commonwealth of Virginia.
  5. File all of the above forms in person with the Civil Court where the minor child currently decides, along with the Court filing fee. If the child is not yet a Virginia resident, you may need to first file a Petition in a court where the child resides, requesting permission to relocate them to Virginia.

*Uncontested guardianship cases mean that any living natural parents support the appointment of a legal guardian for their child. If the natural parents do not give their consent, there may be additional Court hearings and steps in the process. Please consult with a family law attorney to understand the steps in a contested guardianship case.

What if the child is not a U.S. citizen?

Assuming legal guardianship of a minor child whose parents who are living abroad is not an uncommon scenario here in Virginia. The Court documents and process are roughly the same. However, in your petition and in the natural parents’ letter of consent, you will need to specifically address the circumstances in the parents’ country of residence that render it unsafe or unfit for the minor child to live there. You may also need to submit additional Exhibits as required by the Court.

Ask an experienced family law attorney

While it is possible to represent yourself in court when seeking appointment as a child’s legal guardian, working with a family law attorney can ensure that you don’t miss any important steps in the legal process. Our law practice has been helping Northern Virginia families with guardianship cases since 2001, and we are dedicated to working toward the best possible outcome for the child, the parents, and the guardian.

Are you seeking guardianship of an incapacitated adult child or relative? We can help with that, too. Contact the Law Office of Patricia E. Tichenor for more information.

Estate Planning Tips for New Parents

estate planning for new parents

Estate Planning for New Parents
NOVA Estate Lawyers – Leesburg, VA

Before you had your child, you only had to think about inheritance for your partner (and maybe your siblings or cousins). As self-sufficient adults, your heirs would be financially OK if you died tomorrow and left them whatever was in your estate. More importantly, they’d understand what to do with those assets and how to manage them.

Small children, on the other hand, cannot financially provide for themselves, and likely wouldn’t have the maturity or knowledge to handle the assets you left them. That’s why, when you have a child, your estate plans need to consider not only the money and property you’re leaving behind, but how your estate will be managed on your child’s behalf, and who will care for the child in your absence.

What’s the best way to provide for my child in my estate plans?

As a new parent, you’ll want to update your estate plans as soon as possible after your child’s birth or adoption. Here are a few key elements you should incorporate:

Legal guardianship designation

One of the most crucial considerations for parents of minor children is who would care for them if both of you were to die. It’s an unthinkable situation, but it could happen, so you’ll need to appoint a trusted, responsible legal guardian in your will. You may also wish to designate this person as a Standby Guardian, who can care for your child if you become permanently or temporarily incapacitated during your lifetime. Always ask a person before you include them as a guardian in your estate plans to ensure they accept and understand their responsibilities.

Revocable living trust and trustee

When you pass property through a will, it goes through a lengthy, expensive probate process. It also becomes tricky when you try to leave assets to a minor child, as they may not be capable of managing money and property yet. Instead, you can set up a trust, in which an appointed trustee manages your assets on behalf of a beneficiary (i.e., your child) until they are old enough to inherit it. A trust has the added benefit of keeping the inheritance process out of court, which means it is faster and more direct.

You can learn more about how a trust works to provide for your minor child or a beneficiary with special needs in our blog post.

Beneficiary designations

If you have payable-on-death assets that require a special beneficiary designation form, such as a life insurance policy or a retirement account, update these to include your child as a new primary or secondary beneficiary.

Aside from the above, a complete estate plan also includes your will, a durable general power of attorney, and a durable medical power of attorney.

You may be tempted to put off estate plan updates because you’re too busy worrying about your child’s immediate needs, but it’s imperative to make time for this. The only thing more important than caring for your baby right now, is making sure they’ll be taken care of if something happens to you.

Speak with an estate planning attorney today.

Every family is different and has their own unique estate planning needs. The Law Office of Patricia E. Tichenor, P.L.L.C. has been assisting Northern Virginia families with wills, trusts, legal guardianships, and other estate-related documents for more than 15 years.

Contact us today to learn how we can help you create the best plan for your family, and ensure that your child’s future is secure.

Estate Planning Documents: What Do I Need?

estate planning documents

Essential Estate Planning Documents
NOVA Estate Lawyers – Leesburg, VA

You probably know you need to write a will to distribute your property and financial assets following your death. This is a good start, but for a comprehensive, complete estate plan, you’ll need a few more essential documents.

Other estate planning tools, such as a living trust and a power of attorney (POA) agreement, work in conjunction with your last will and testament to make sure your intentions are honored on all fronts. Without these additional documents, a probate court may have the final say over what happens to parts of your estate, a process that is both costly and potentially heartbreaking for your loved ones.

Before concluding that your estate plan is complete, be sure that you’ve determined whether you actually need all or some of the following estate planning documents to achieve your specific goals for your plan:

1. Last will and testament

When drafted according to your home state’s laws, your will is a binding legal document that tells a probate court how to follow your final wishes. Every will needs an executor – whether it’s a family member, friend, or trusted professional like an attorney – to oversee the management of your assets after your death. This person will pay your final debts and expenses, file estate taxes, and make distributions to your named beneficiaries.  They will also distribute items from your tangible property list to named beneficiaries if you leave such a list.

2. Revocable living trust

While you still always need a will, many estate planning attorneys recommend distributing some property via a revocable living trust. A trustee of your choosing will manage the assets titled into the name of your trust (before and after your death) – without court interference – on behalf of the beneficiary you designate.  If you decide to add a living trust to your estate plan, then you can have a very simple will that functions as what’s called a “pour-over will,” to allow your executor to merely serve to transfer to the control of your trustee and your trust any assets that you did not title in the trust prior to your death, did not name the trust as the beneficiary of prior to your death, or did not name a living person to receive at your death.

3. Durable general power of attorney and durable medical power of attorney

The person(s) you name in your power of attorney agreements are the ones who have the legal right to make financial and healthcare decisions for you if you become incapacitated during your lifetime. Your POA agents should be individuals whom you trust to act in your best interest if you are mentally or physically unable to communicate your intentions.

4. Beneficiary designations:  Guidance on Non-Probate Planning

Most people know that for assets such as retirement plans and insurance policies, you need to fill out the beneficiary designation forms provided by the company that holds your account. Forms for such assets supersede your will instructions, so always keep them up-to-date, especially if you’ve had any recent major life changes.  However, you can do this with many other types of assets and are encouraged to seek guidance on doing so as part of a comprehensive estate plan.

5. Legal guardianship designation

If you have minor children, you’ll need to choose a trusted legal guardian to care for them if you become disabled or die before they are of age. It’s wise to have this discussion with your potential guardian before naming them in your estate plans. If you don’t, the process can be costly and stressful for the children and family members to deal with, including home visits, possible foster family care, and court appearance to have someone appointed guardian.

Optional: Letter of intent

Although it’s not considered a legally valid estate planning document, you may want to create a letter of intent to guide your estate executor with specific instructions to follow upon your death, including potential funeral arrangements.  Such letters could be a good way to communicate your final burial wishes or the reasons for making certain gifts to certain beneficiaries.   Lastly, such letters might also help a probate court interpret your will and intentions if any part of it is called into question.

Need estate planning forms? Speak with your attorney.

Not sure where to begin with your estate plan documentation? The The Law Office of Patricia E. Tichenor, P.L.L.C. can help. We have been assisting Northern Virginia families with their estate planning needs since 2001.

Contact us today to learn how we can help you create the best plan for your family’s future, and ensure that all the necessary forms are complete and legally sound.

The Law Office of Patricia E. Tichenor, P.L.L.C.
Professional Legal Services or Legal Representation
(703) 669-6700

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