Who is a Legal Custodian & Legal Guardian?
Legal Custodian
The legal custodian is the person to whom "custody" of a child has been granted by a court of law. Under Illinois law, the only case in which "custody" of a minor child can be granted is in an adoption case. The term, "custody", in the context of an adoption action, means that the legal custodian has the right to make decisions regarding the raising of the child. A legal custodian does not have the right to consent to the adoption by anyone else. An agency can be a legal custodian.
Legal Guardian
A legal guardian is the person appointed by a court of law to be responsible for a child who has been found to be a "dependent" child. A "dependent" child means that there has been a finding by the court that the person legally responsible for the child has abused , neglected or belittled the child, and that because of it, the parent is "unfit". The legal guardian is granted legal custody of the child and permission to consent to medical treatment and other decisions for the child, to give permission for the child to travel to another country, obtain a work permit, and sign applications for school and sports.
Legal Custodian Duties and Responsibilities
A legal custodian, on the other hand, has more defined responsibilities and limitations than a legal guardian. As established under 20 Pa.C.S. § 715, a legal custodian is "a trustee of an express trust or a special custodian appointed under this part in accordance with section 715 (relating to appointment of special custodian and acceptance thereof)." A legal custodian has authority over only the funds and property expressly entrusted to him or her, and that authority must be set forth in the parties’ custodial agreement if the account is not administered according to the Uniform Transfers to Minors Act.
Custodial accounts can be set up through banks, investment companies, and stock brokerage firms. As such, a legal custodian may be empowered to open bank or brokerage accounts, rent safe-deposit boxes, invest or sell stocks, act as a trustee outside of the commonwealth of Pennsylvania, and other duties as specified in the custodial agreement. On its face, the authority usually appears to be broad in scope. However, the legal custodian’s authority does not extend to the minor child. For example, a legal custodian may not apply to receive government benefits on behalf of a minor child unless the legal custodian is specifically appointed by the court to do so, in which case the minor child’s interests must be protected.
The appointment of a legal custodian is usually governed by 20 Pa.C.S. § 710 and the Uniform Transfers to Minors Act (20 Pa.C.S. § 5301-5318). Individuals will appoint a legal custodian either in their Will or other estate-planning document, or by account-opening forms provided by banks or brokerage firms. In the case of a deceased custodian, a legal custodian’s appointment could also have been caused by a court order or certification issued under 20 Pa.C.S. § 712, i.e., Certificates issued by the Register of Wills stating that a custodian has been appointed for the benefit of a minor child.
Given that the custodian’s role is limited solely to the care of the minor child’s inheritance, the legal custodian may require the permission of the minor child’s parent or guardian prior to making certain expenditures on behalf of the minor child. The minor child’s parent or guardian does not have a right to approve or disapprove the legal custodian’s decisions regarding the minor child’s accounts. However, the minor child’s parent or guardian would have a right to challenge the custodian for the minor child’s benefit, if necessary.
Legal Guardian Duties and Responsibilities
A legal guardian is a person appointed by a Court to provide care and control over the person and, if necessary, the estate of another person. The person for whom a legal guardian is responsible is called the "ward." The role of a legal guardian encompasses many responsibilities, which vary depending on whether the appointment is of a person’s estate, person’s custody, or person and estate. Whereas a legal custodian is appointed to make decisions about the care of a child and provide that care if custody is awarded, a legal guardian is responsible for the decision making and provision of care for a person age eighteen or older. When the guardian’s authority is limited to the rights and powers which devolve upon parents, the guardian is termed a "plenary guardian." Someone appointed to serve as guardian of a person’s estate is termed the "guardian of the property." If the authority of the guardian is limited as set out in the Order appointing the guardian, the guardian holds the title of "guardian limited as to estate." If the appointment is of both person and estate, the guardian holds the title of "general guardian." In any circumstance, the guardian has a fiduciary duty to act in the best interest of the ward and exercise ordinary diligence and care as a reasonably prudent person would in handling and protecting his own property.
Whether a guardian is appointed of the estate, the person, or both, he or she is given broad powers over the ward and the ward’s affairs. A guardian may take possession of the estate of the ward; make contracts on behalf of the ward; institute suits for the recovery of money belonging to the ward and defend the ward in actions at law; settle or compromise any matter in dispute in connection with the estate; apply the income of the estate for the comfortable maintenance of the ward, if necessary, and for the education of the ward; and apply the principal of the estate to the tolls of office, to the support of the ward and his family, if any, and to the payment of debts due from the ward prior to the appointment of the guardian. For other Powers granted to a guardian, see 20 Pa.C.S. §5310. See also 20 Pa.C.S. §5501, which sets out Powers and Duties in general terms. A guardian of the estate is NOT allowed to take any action or exercise any power on behalf of a ward that exceeds or conflicts with the authority conferred by the Order appointing the guardian or the applicable laws of Pennsylvania regarding powers of fiduciaries.
The legal guardian has sole and exclusive custody of a person who is a minor under the age of majority in Pennsylvania, which is eighteen years of age, and the general guardian of the estate of a minor has the same rights and authority as a parent over the minor. These rights and authority are NOT absolute and are always subject to the paramount power of the Court in which the guardianship is granted. A guardian of the estate is also empowered with custody of a person under an "incompetent" status, which includes, but is not limited to: a person who has a mental or physical disability preventing him from receiving and evaluating information effectively or communicating decisions, a person who has a mental or physical disability impairing his ability to provide for his safety or protection; and a person with a mental disability or substance dependence, or another like incapacitating condition, rendering him incapable of managing his financial resources, including the income of the person. See 20 Pa.C.S. §5501 regarding what constitutes an "incompetent" status.
Most Guardianships of persons and estates do NOT terminate when the ward reaches age eighteen. Moreover, although a ward is a minor under the age of eighteen and stays under the care of the legal guardian, the guardian is entitled to reasonable compensation and reimbursement for reasonable expenses incurred in the course of his duties. The Court always retains the right to remove a legal guardian if he fails to fulfill his duties and obligations under the guardianship and the laws of Pennsylvania.
Custodian vs Guardian: What’s the Difference?
The primary distinction between a legal custodian and legal guardian rests in the relationship between the adult and the child. A legal custodian assumes the rights and obligations relative to overseeing and maintaining a child’s growth without necessarily having control over the child’s assets. A legal guardian, on the other hand, has all the rights, powers, privileges, and responsibilities of a parent without regard to marital status, divorce, or separation.
The legal authority granted to a custodian is established under the Uniform Transfers to Minors Act (UTMA) and requires the filing of a verified petition with the Circuit Court of Cook County that identifies the child, the applicant, and the property which is to be placed into custodianship. The trustee avoids the legal formalities associated with a typical trust. The custodian is not liable for failure to realize any short-term capital gains, dividends, or interest derived from the custodial property.
Under Cook County, Illinois guidelines, the custodian fees are limited to 1% of the annual gross receipts of the custodial property but can be altered by the governing instrument establishing the custodianship. Custodianship terminates when the child attains eighteen years of age.
A legal guardian for a minor may be appointed if the minor’s biological or adoptive parents are unwilling or unable to care for their child for a variety of reasons. Adoption, incompetence, disability, death, imprisonment, substance abuse, drug addiction, imprisonment, or incarceration are among the most frequent causes resulting in guardianship. A legal guardian can be given full parental authority and responsibilities, but the appointing court may limit the scope of authority and decision-making power.
Cook County, Illinois permits petitions in cases where a child is deemed to be "neglected, abused, emotionally abused, and/or the parents are unfit or unable to properly care for the child." The adult seeking legal guardianship must be a competent adult and can be either a relative, family member, or other person; the person must also be "suitable and able" to care for the child.
The legal guardian assumes the rights and obligations of the natural or adoptive parent in relation to the welfare, education, health, and religious instruction of the child. The legal guardian possesses all the rights and duties of a parent. Legal guardianship is always subject to court review, and if the circumstances change in a negative way, the court can terminate the guardianship.
When to Select a Legal Custodian
The "when" refers to the circumstances under which one would choose a legal custodian over a legal guardian. The distinction between a legal custodian and legal guardian is not always clear to those making these decisions, yet there are some situations when appointing a legal custodian is the preferred option. A legal custodian is usually chosen rather than a legal guardian when: Custodianship is typically preferred for temporary care of children, for example, in the event that natural parents die in a car accident, by preference of the other parent, in cases of separation or divorce, or once children reach a certain age.
A legal custodian can be appointed, for instance, when a family relative or other adult takes care of a child in his or her home for their health and safety and their needs are very different from a guardian’s.
There also are a number of other specific legal conditions when a legal custodian is used . If a minor becomes an adult, the family must file a petition to terminate the guardianship, but a custodianship ends automatically when the recipient reaches the age of majority at 18 for all purposes under the law. A dying testator may appoint a custodian for funds until the minor reaches the age of majority. Sometimes, a donor designates a legal custodian for a minor under the UCT. Under the Uniform Gifts to Minors Act (UGMA), an individual 18 years of age or older can serve as a custodian for property transferred to a minor until he or she turns 21. Under the Uniform Transfers to Minors Act (UTMA), an adult who is a resident of Indiana can serve a custodian for a minor until he or she is 21.
The UNIFORM TRANSFERS TO MINORS ACT (UTMA) allows for gifts of any type of property to a minor, and the donor, custodian, donor or custodian may be a bank or financial institution with trust powers.
When to Select a Legal Guardian
When it is More Appropriate to Nominate a Legal Guardian for Your Child
From personal experience, the primary motivation for my client’s to nominate a legal guardian for their children is in anticipation of one spouse’s unexpected death. The appointment of a legal guardian is generally suited in situations where the main concern is who will look after the child if something happens to both parents. I also find that people are more comfortable with the concept of a legal guardian since it seems less permanent than permanent custody. Sometimes it may be necessary to nominate a legal guardian to replicate the care that a child would have received if their biological parents had not died.
When we nominate legal guardians for children, it is not only in case something happens. In some cases, the appointment of a legal guardian makes sense to plan for contingencies that can happen at any time, such as mental disability or physical impairment due to illness. There are parents whose children have severe mental, behavioural or physical disabilities. If these children are adequately schooled and supervised by their parents (or a professional caregiver), they can lead relatively wholesome lives. However, if the parents are no longer able to fulfil this role, and there is no legal guardian in place to care for the child, he or she may be placed under the care of the Children’s Aid Society. Leaving your child to the care of the Children’s Aid Society is no substitute for a parent’s individual level of care and supervision.
In those situations, it is helpful if the parents have appointed a legal guardian to care for the child. This arrangement gives parents the right to determine who will care for their special needs child in the event that their care is no longer possible. Of course, these situations only apply if parents plan well, which many do not. Appointing a legal guardian for a special needs child is ideal, however, many parents of special needs children do not think to step back and plan for the future, mostly because they are concerned with the present and getting through each day. It is not until parents are diagnosed with a terminal illness that they must think about the future care of their children. That is sometimes too late.
Take for example, a person who has a special needs child. This parent then dies unexpectedly. Did he or she do enough research to help that special needs child? Did he or she appoint a legal guardian to provide for the child? If they did not do these things, who will take care of your child? That is why it is important to nominate a legal guardian in these circumstances.
Another example of when and why you should choose a legal guardian is in the case of an elderly parent. While you may be healthy today, you may become incapacitated in the near future due to an accident. To ensure that your children are cared for, and provided for, appointing a legal guardian is an ideal way to avoid leaving your child’s future to the Children’s Aid Society. It is also wise to plan for third party care if you know, or suspect, that you will have difficulty recovering from an illness.
It can also happen that parents’ may separate, and although they may have joint custody, one parent is unable to adequately provide and care for a child. In that case, if the child is to live with the other parent, you may consider appointing a legal guardian for the child in the event that either parent dies. If the other parent passes away, the child will be better taken care of if there is a legal guardian in place.
Legal Procedures for Appointment
Before the appointment of a legal guardian for a minor, it is important that a petition for appointment of guardian and letters of guardianship is filed with the court. The petition shall contain the following information: A hearing is held in which the Court shall appoint a guardian over the child if the Court is satisfied that the child is in need of a guardian and that no other person is more suitable. The guardian also has the responsibility to file reports of the care and maintenance of the child with the Court. (See N.C. Gen. Stat. § 35A-1216)
For the appointment of a legal custodian, the petitioner must file a petition alleging one of the following factors: The petition must be heard in a conference (ex parte) by a judge. The judge will determine whether an adjudication is required by law before the appointment of a custodian is made. If an adjudication is not required, the judge may enter the order appointing custodian or direct that a hearing be held. If the judge orders a hearing, the Court shall appoint a public guardian to investigate the circumstances surrounding the petition, the financial resources necessary to meet the needs of the minor child and the qualifications of any proposed custodian. (See N.C. Gen. Stat. § 50A-6) After the hearing, the judge can either appoint a legal custodian, look for alternative care for the child, or remove the minor from the care of the custodian.
Rights of the Ward
The Rights of the Ward: Preserving the Ward’s Interests, Not the Guardian
A question I get asked occasionally is whether a legal custodian or legal guardian has the power to override a ward’s decisions (as well as what "ward" means, and that is explained below). A question usually follows asking whether a legal custodian or legal guardian can force the ward into therapy, move the ward into nursing home or group home, make financial decisions on the ward’s behalf , etc. The answer to those questions lies in the rights granted to the ward and the limitations placed on the legal custodian or legal guardians by the court. To the extent possible, rights of a legal ward are presumed by statute. The burden is on the legal custodian or legal guardian to show why the ward’s rights should be limited. The rights of a legal custodian or legal guardian does not allow the custodian or guardian to act at their own discretion but act in accordance with the best interests of the ward. Restricting the ward’s rights should be the last resort, not the only option available.
