Know the Difference Between Guardianship and Custody

What is the difference between guardianship and custody? Both become necessary when the child’s parents die, leaving behind an inheritance to a minor, who cannot inherit assets or money outright. Learn more about guardianship and custody in the following.

What is Guardianship

Also simply referred to as conservatorship, guardianship is a legal process that is used when someone cannot communicate or make sound decisions about his/her property or person. 

In this case, this individual subject for guardianship may no longer be able to recognize or become susceptible to undue influence or fraud.

But as guardianship will remove some rights from him/her, it’s only considered when other alternatives are unavailable or deemed ineffective. 

Once successful, the guardian, on the other hand, is the one that will exercise his/her legal rights. 

A guardian can be an institution, such as a bank trust department, or an individual assigned to care for the ward¸ the incapacitated person, and/or his/her wealth.

What is Child Custody?

On the other hand, child custody refers to the control and support of a child. It is court-determined once the parents separated or divorced. 

So if you’re separating but have a child, both visitation rights and custody can be major concerns.

During child custody, the child or the children will live with the custody parent most of the time.  

And then, the parent without custody will have visitation rights to visit the child/children at specific times as well as the right to know about the children, also called access.

Child custody is made of legal custody referring to the decision-making rights about the child, along with physical custody referring to the duty and right to take care, provide and house the child.

How and Who Appoints a Guardian or a Custodian? 

Know that the guardian fulfills the duties and roles of a substitute parent, who should maintain the legal and physical custody as well as make medical and financial decisions on behalf of the child.

In many jurisdictions, a guardian is chosen by the parents and is court-approved when both parents die or no longer capable of caring for the child. 

If a will is not in place or no guardian has been appointed before both parents die, the jurisdiction court will appoint a guardian for the child.

If a parent, who named someone as a guardian other than the surviving parent dies, the court can override it and make another appointment if it’s being done for the child’s best interest.

On the other hand, a custodian is also appointed by a will.  

He/she oversees, protects and manages the inheritance received by a minor until the child reaches legal age.  The custodian can also serve as a guardian.

For help, you might want to seek help from a guardianship attorney who specializes in guardianship and child custody cases.

Uniform Transfers to Minors Act

This model law is adopted by almost all states along with DC. It controls assets transfer to minors. 

Under the UTMA, a parent can select a custodian to manage specific accounts or property inherited by a child.

The UTMA also allows a minor to receive patents, money, real estate, royalties, fine art and other gifts without the help of a trustee or guardian.  Under it, the appointed custodian or gift giver manages the account of the minor until he/she reaches legal age.

Before the Act, custodians needed to get court approval for any action about the inheritance or account held for the minor. 

But now, custodians can make financial decisions without obtaining court approval provided they are in the best interest of the child.

Conclusion

Guardianship and custody are two important things that need careful and thorough planning and execution. Thus, it is essential that you consult a guardianship lawyer who can help you navigate these two complicated legal processes.

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