What is Joint Legal Guardianship?
When someone mentions the term "legal guardianship," people often think of a legal relationship whereby a judge appoints someone to look after a child who has lost his or her parents. Legal guardianships are frequently used when all parties are in agreement, and are the most common option to avoid probate for young adults. However, within the legal guardianship realm, there is a lesser-known form called a "joint guardianship." Joint guardianship is much less common than a "standard" legal guardianship.
As the name implies, joint guardianship is a guardianship arrangement where two or more individuals share joint guardianship of a person (either an adult or a minor). While this arrangement is fairly uncommon, it does exist in a number of different contexts.
Examples of Joint Guardianship Arrangements
Joint guardianship of a minor. Parent/guardian is too ill or incapacitated—short-term, temporarily—to care for minor. This is a common arrangement where a parent or guardian goes in the hospital long-term, as may be required for chemotherapy treatments. A close relative, like a grandparent, may step in for at least a short time to care for the minor. This arrangement should be changed to a full legal guardianship if it becomes long-term, typically longer than a year (conveniently, a guardianship must be renewed every year, offering an opportunity to ponder whether a guardianship is still required) .
Joint guardianship of an adult. Here, the situation is similar to that of the minor. An adult is incapable of caring for him or herself due to incapacity, and a joint guardianship arrangement is made with a close friend or relative. This arrangement should be made full guardianship if it is required long-term.
Joint guardianship of an estate. In this case, an executor or administrator of an estate is unable—or incapacitated—to fulfill their role. A joint guardianship may allow another person to step in for the original executor or administrator in order to fulfill his or her role. It may also be applied to Trusts, allowing a co-Trustee to govern an estate when that job can no longer be done by the original Trustee.
Of course, it’s always possible to execute a standard legal guardianship, in which a court will appoint a guardian to act on behalf of the person being protected. The courts, for various reasons, tend to frown on joint assignment of duties in such matters. Be aware, too, that joint guardianship arrangements are not the same as joint guardianship with alternatives to the courts through private estate management. For example, it’s commonplace for seniors to create durable powers of attorney (not guardianship) that name co-agents—persons who can act in the event that the principal becomes incapacitated.
Advantages of Joint Legal Guardianship
The choice to become a joint legal guardian can be a significant and invaluable decision for both children and guardians. From emotional support to legal protection, the advantages of joint legal guardianship far outweigh the alternatives.
Emotionally, joint legal guardianship provides children with a stable and loving environment in which to grow. Unlike foster care, when a child is placed with other children of a similar age level, joint guardianship may allow a child to remain with their biological siblings and maintain a more conventional family structure. For the child, this helps to keep their lives consistent and allows them to enjoy an easier transition into a guardianship, as compared to foster care.
For the guardian, the emotional benefits are also numerous. Guardianship provides a sense of purpose and loyal responsibility to someone else. For many, this is a family member. It helps to give guardians hope, emotional fulfillment, and satisfaction.
Legally speaking, joint legal guardianship gives the same rights and responsibilities to both parties, allowing each to have equal say in both the child’s medical and educational decisions. This means that a guardian is in full control of their case, allowing them to persuade the court and advocate for what they believe is in the best interests of the child. Without joint legal guardianship, a guardian would need to petition the court over each decision, which takes away the child’s opportunity to grow up in a stable environment.
This leads to the practical benefits of joint legal guardianship. On a day to day basis, joint legal guardianship allows a guardian to act as the child’s parent and provide for their basic needs (until they turn 18) as well as make or delegate decisions regarding their educational and medical well-being.
How to Set Up Joint Legal Guardianship
For parents to establish joint legal guardianship, a petition must be filed with the appropriate court. In Pennsylvania, the petition is filed in Orphan’s Court, but not every state has a separate Orphan’s Court. Generally, the court in which the petition is filed is the child’s home court. That is the court that has jurisdiction over the child.
Some states have a waiting period after the petition is filed before a hearing is held. The waiting period is usually used to send notice of the proceeding to all interested parties. That is everyone that has any rights to the child should be notified and given the opportunity to voice their opinion on the joint legal guardianship.
If a party does object to the joint legal guardianship, a hearing will be held to determine whether or not the party’s objections require that the joint legal guardianship be reconsidered or revoked. This is where it is very important that you seek the guidance of an experienced lawyer. Emotional testimony is the norm for such hearings, and having an experienced lawyer in court can be the key to a determination in your favor.
If the joint legal guardianship is contested, it is going to be expensive and lengthy. A common misconception is that contesting a court proceeding is similar to contesting a divorce. Although there is a lot to be worked out in the mutual benefit of the child, whereas in a divorce each party has something to gain, in a contested legal guardianship each party has something to lose.
Joint Legal Guardianship vs. Single Legal Guardianship
Joint legal guardianship differs from sole legal guardianship in several key ways. In a joint legal guardianship, both guardians share equal legal rights over the ward. Therefore, they must work together when making decisions about the ward’s care or welfare. For example, the court must confer with both guardians before it makes any changes to the guardianship.
When a legal guardianship exists in sole form, only one guardian retains legal rights to make key decisions on behalf of the ward. This can pose advantages and disadvantages to guardians and wards alike. For the guardian, sole legal authority makes the decision-making process easier, as he or she does not have to wait on the other guardian to make decisions about the ward’s care or welfare.
A sole guardian can also make decisions that may not sit well with the other individual, and that may not have otherwise supported court approval. However, sole legal guardianship can become a burden at times. In cases in which a sole guardian suddenly becomes incapacitated, no one else will have the authority to make decisions on behalf of the ward. This can lead to complications that could have been avoided if the guardianship were of a joint legal or non-legal type.
For example, the court may need to appoint a new guardian. Alternatively, the second guardian may have to step in and assume the role, even if it means having no say in the decisions. Additionally, the court may not acknowledge the incapacity until well after the fact. To prevent such issues, some guardians choose to have a power of attorney document drawn up, appointing an alternate to assume the role of legal guardian if needed.
Of course, joint and sole legal guardianship both differ from guardianships of nondisabled adults in significant ways. For example, once granted, a nondisabled adult can end his or her guardianship without court approval. In addition, such a guardianship is dissolved "solely on the death of the ward." Conversely, joint and sole legal guardianship differ in this respect, as a guardian continues to operate under the court’s jurisdiction even when the ward dies.
Powers and Limitations of Joint Legal Guardians
The rights and responsibilities of joint legal guardians are similar to those of individual guardians. Moreover, the specific rights of guardianship can vary according to the needs and circumstances of the child. Generally speaking, the rights and powers of the guardianship fall into four categories, which relate to:
Each of these categories is explained in more depth below.
In another example, two parents may share each other’s decisions on their daughter’s schooling. Alternatively , they could both agree to defer that decision to the guardians. Having joint guardianship allows for this flexibility.
Joint legal guardians typically have the same rights and duties as an individual, and share the responsibility of making important decisions regarding the child.
On occasion, a court may also appoint a third party (such as a grandparent) in addition to the parents as joint legal guardians.
Typical Obstacles in Joint Legal Guardianship
Certain challenges often arise in the context of joint legal guardianship. These can be avoided with comprehensive planning and communication, but conflicts can also be avoided when they do arise.
When parents of a minor child are divorced or unmarried – and guardianship subsequently becomes necessary – litigation often ensues. Whether litigating the terms of the guardianship, confirming the individual who should act as guardian, or moving to have an appointed guardian removed, there are several issues at play. These include the following:
Conflict Over Residence
When the minor child lives equally between parents, the guardian can decide which domicile leads to greater benefit for the child. However, if the child does not move equally between residences, or if residency is divided 60-40, 70-30, or some other proportion, there may be a "home court race," whereby two guardians present their respective cases to the court and the court decides where the child will reside and which guardian will have greater legal influence over their upbringing.
Conflict Over Guardianship
It is possible for two parties to file for guardianship of a minor child. As outlined above, separate petitions to be appointed guardian and separate hearings may lead to custody disputes.
Conflict Over Time Share in Guardianship
In the context of joint legal guardianship, parents may have unequal amounts of time spent with a minor child. For example, one parent may spend three weeks with the child, while the other parent spends one week. However, there may also be unequal time share in decision-making. The ideal solution with regard to time share is equality, as both parents are equally responsible for making life decisions on behalf of their child. That being said, there are certain decisions that must be made when the minor child is in the physical custody of one parent and not the other. For example, when a minor child is sick, the custodial parent has the authority to authorize cancer treatment, emergency treatment for a broken bone, etc. Essentially, all legal decisions pertaining to the welfare of the minor child, regardless of time share, must be agreed upon by both guardians.
Navigating these and other legal issues associated with joint legal guardianship is important. While planning certainly makes the process easier, challenges can still arise and must be dealt with while keeping the best interests of the child at the forefront.
Modifying or Ending Joint Legal Guardianship
When it becomes necessary to change or terminate an existing joint legal guardianship, careful consideration is given to either terminating the current joint legal guardianship arrangement or modifying the structure of the existing joint legal guardianship. It may be appropriate in some circumstances to replace one legal guardian with another, to have successor legal guardians in place, or to effectuate a single legal guardianship arrangement by terminating the existing joint guardianship arrangement. In many circumstances the initial joint legal guardianship was created during or following divorce and has often outlived its original purpose and/or practical application.
As is the case with all Guardianship matters, to change or terminate a legal guardianship proceeding must be initiated in the court with jurisdiction over the matter. It may involve private mediation, court ordered mediation or a hearing. Often times these matters can be resolved through a stipulation of the parties and/or by examination and consent of the parties. But in any event, any change or termination requires a court order to effectuate.
The Guardianship Attorney Fee related to these matters will vary depending upon the amount of time that needs to be expended on the matter. Some of these matters are relatively simple and oftentimes involve a nominal Guardianship Consultation fee whereas others may require several hours to resolve. This includes the preparation of Orders which may or may not require a Court appearance.
Professional Help for Guardianship
Seeking professional legal assistance is an essential step for many individuals navigating joint legal guardianship matters. An experienced attorney can help you understand your rights and responsibilities under the guardianship, navigate potential disputes, and ensure compliance with legal protocols. The complexity of legal guardianships, particularly those awarded to multiple parties, often requires the expertise and guidance of a knowledgeable attorney with a specialized focus on family law and guardianship issues.
When seeking legal assistance, it is crucial to find an attorney who is well-versed in relevant judicial rulings, guardianship laws , and regulations. A qualified attorney can evaluate your unique circumstances and help identify any potential areas of conflict or complication. In addition, they can provide valuable representation in court hearings, mediation sessions, and negotiations.
Referrals from family, friends, or acquaintances may be an excellent way to locate a qualified attorney; however, prospective clients may also want to utilize online resources to identify local attorneys with experience in guardianship representation. Scheduling a meeting with a specialized attorney can help clarify any doubts you may have on the joint legal guardianship process and give you confidence in your representation.