Who Is a Legal Guardian?
A legal guardian is someone the court has approved to take care of a minor. The guardianship can be used when the parents are temporarily absent, such as when they are away serving in the military. Guardianship can also be for the remainder of a protected person’s childhood. An example would be when the child’s parents are deceased.
Nevada custody law allows parents and guardians to privately agree to guardianship arrangements that will last six months or less.
Although parents have all the legal rights of a guardian, they are legal parents, not legal guardians.
Parents can name a guardian for their minor children in their will. The court is not required to accept the parents’ recommendation, but they will consider it. If the parents choose someone with a good character who is healthy enough to provide care, their request will usually be granted.
What is Adoption?
Adoption creates a legal parent-child relationship that is legally the same as that of a child born to the adoptive parents. When someone is adopted, they lose any inheritance rights they had to their birth family and gain inheritance rights in their adoptive family.
Legal Guardianship vs. Adoption: Main Differences
Authority and Responsibility
The difference between guardianship and adoption can be confusing. Both concepts are legal ways to give an adult the legal authority and responsibility for a child that is not their biological child.
When a child is adopted, the parents’ child support and other obligations toward the child terminate. When a child is cared for by a legal guardian, child support obligations remain in effect.
Duration of the Arrangement
The duration of the arrangement is one of two of the most important differences between guardianship and adoption. Adoption is permanent. Guardianship generally ends when the child reaches the age of majority – 18-years-old.
The second major difference is inheritance rights. Being the guardian does not give the child any right to inherit from their guardian. A protected person does not have a right to challenge the terms of their guardians’ will or other estate planning instruments. An adopted person can inherit from the adopted parents as well as other relatives of the adoptive parents with the same standing a biological child of the parents has to inherit.
Likewise, a guardian does not inherit from their ward while an adoptive parent can inherit from their adoptive child.
Stepparent Adoption vs Guardianship
When a parent marries someone who is not their child’s biological parent and wants to ensure that the stepparent will be able to care for the child if something happens to their biological parent, the parent can name the stepparent as the child’s guardian in their will. Or, alternatively, they can do a step-parent adoption if the other parent is willing to release their parental rights.
While the child involved in a stepparent adoption will gain the right to inherit from their adoptive parent, they lose the right to inherit from the biological parent that released their parental rights. This is an important aspect when you’re deciding between guardianship vs adoption.
Guardianship does not terminate a parents’ rights to the child. Adoption does.
Adoption is not reversible. Guardianship is reversible.
These differences are important if you have guardianship of a child and worry about the parents attempting to assert their parental rights to the child. For example, if a grandparent is raising a grandchild because the child’s parent is addicted to drugs, they may want to consult an attorney about adopting the child.
Ability to Restrict Visitation
Both adoptive parents and guardians can restrict other people’s access to the child, including grandparents and others who may have strong emotional connections with the child. Even in an open adoption where the agreement is that the biological parent will be able to maintain contact, the adoptive parents can refuse contact, potentially impacting grandparent rights.
Choosing Between Guardianship vs Adoption
The decision to give a child up for adoption is often heart wrenching. When a parent intended to raise a child and that becomes challenging due to health problems, addictions, or an incarceration, the parent has a difficult decision to make. Will they continue trying to be the best parent they can to their child even though it may mean frequent disruptions in the child’s life? Or, will they give up their parental rights in order to provide consistency to the child’s life?
Adoption doesn’t guarantee consistency. It can be difficult to find an adoptive family for older children. The child may be moved from one foster family to another.
Evaluating your odds of overcoming the challenges and being able to provide for your child in the future is one factor to consider. If you would like to discuss your situation with someone who understands the nuanced differences between guardianship and adoption, consult a guardianship attorney in Las Vegas.
For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship and real estate matters representing clients throughout the state of Nevada.
Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.