it's good Wednesday night here on PBS for Wayne.

The show we have coming up here on this next half hour for it's called LIFE Ahead.

I love the show.

I've been hosting it now a number of years and what I like about it is that we try to give you education and information for choices that you might have to make in your LIFE Ahead.

And each Wednesday we have different topics but we frequently have in fact the first Wednesday of every month for sure we have a legal show and that's what we have tonight here as we begin October .

And I have two guests that are both attorney speckling and specializing in elder law.

But I think you've met before if you're a regular viewer of us here on LIFE Ahead, let me introduce you if you don't know her already to Jessica Thorson's hello.

>> Always good to see you, Jessica.

>> I love being here.

Have you counted how many shows you've done?

Oh no.

I've like to hit a lot a lot.

>> I mean we're well more into double digits with you for sure.

I think I've been doing the show now for a little more than ten years.

See there we go.

My kids when they don't watch so much now as teenagers but when they were littler they used to be glued to the TV wondering why Mom wasn't talking right to them but but when they're teenagers it's like you know what Mom does who cares kind of thing.

>> Oh, she's on TV again.

>> No big deal.

Exactly that.

Right?

You're you're not new to this.

You've done several shows with this two and done a great job.

Ryan Gardner, by the way is with This Year on Life Head.

>> Now the main topic that we're going to be talking about are guardianships and third party custody.

>> So we're going to define those and we're going to talk about the parameters of beach and if you have some questions, please please give us a call here at (969) 27 twenty .

>> This is really your show.

So we want to talk about and answer what you'd like to know and again, we have no commercials so you can call us straight through here in this next half hour.

>> Ryan, let's start with you definitions.

>> Let's talk about guardianships and third party Kirsti, what are they and what's the difference?

>> Sure.

No and that's where we should begin.

Obviously guardianship can be of anybody who's an incapacitated person.

But really for tonight we're going to focus on children, OK?

And so a guardianship of a child is a child who's less than 18 and Jessica can talk a little bit later about how you can extend that beyond the age of 18.

Yeah, but any child who's not eighteen is considered an incapacitated person so you can get a guardianship over them but a guardianship isn't always the best solution for a child who needs someone an adult who can make decisions for them because kids can't make decisions for themselves.

>> I've noticed that I have a few you know, even kids who aren't kids anymore shouldn't be making decisions for themselves and that's where a guardian can step in if a parent can't step in or in some cases a third party custodian.

So for third party custodian we're talking about a different set of circumstances than a guardianship and we've talked about guardian before on this show a lot.

>> But a third party custodian is when somebody is already placed to take care of that child whether or not their guardian.

No, no.

So as their custodian OK, OK. All right.

And so sometimes that's a appointment by the court where you can be appointed as a temporary custodian.

OK, in the event mom or dad are not available to take care of the child OK are we talking about children with special needs or just any child any child, any child but children with special needs as well of course.

Sure.

The other way if you're not already appointed as a temporary custodian for a child is you just naturally are filling that role as that child's caregiver as their custodian as it were.

OK, and you can make it a formal appointment after about a year you become legally recognized as a de facto custodian and then you can petition the court to become that child's custodian permanently.

Well, and so like most things the law especially as it relates to guardianships and custodian ships, things can be modified, things can be terminated and and we'll talk about that more OK, I think OK, anything to add to that, Jessica, as as an attorney and as a parent, why is this important to have two choices here guardian or third party custody?

>> Sure.

Oftentimes this starts well Ryan mentioned it can be really any person coming to try to serve in this role.

Oftentimes what elder law attorneys are going to see is they're going to see a grandparent coming because of a situation with their children and grandchildren and so it generally starts with some sort of visitation in that regard of maybe somebody a parent has become incapacitated or there's some sort of situation where they're needing to take care of a grandchild and so they're trying to figure out the best way to proceed and that's where we talk about the different options and maybe why you choose one versus the other and there's a whole lot of facts that can go into these situations.

>> What's the advantage of appointing somebody as a guardian or a third party custodian for a grandchild, for example?

>> Is it that their parents aren't doing their job?

What what happens?

>> I wouldn't necessarily say that there's advantage to being a guardian or a third party custodian.

It's just what facts and circumstances fit your situation or that child's situation because not everybody can be a third party custodian but pretty much anybody can seek the appointment as guardian for a child.

So it really just depends on what's going on home, what's going on with this child and what role have you already fulfilled or stepped in for the parents?

And again, like Jessica said, we do usually see it as grandparents and those grandparents usually come to us when it comes time to well I got to make a medical decision for my grandchild or I've got to enroll them in school and I don't have the legal authority to do that.

So how do I get that legal authority to step in to make this decision because mom and dadare unavailable or should not be making that decision for whatever reason.

>> So once they become the legal custodian or guardian then they can they have the right and can make those decisions help or help grandma not make those decisions.

>> Yeah, right.

That's what's happening making those decisions for the grandchild are they paid for this position so as a custodian is not paid OK, that's not an appointment that you can get paid for .

You can get paid as a guardian but that's very, very rare when we're talking about a guardian of a child because children usually don't have any money to pay their guardian.

>> Yeah, correct custodians however they can receive child support.

>> It is they can they can it's a family law matter falls under the family law or custodial code section in the law and child support is applicable and the judge would sign that or make a decision on that, correct?

>> Definitely.

And so if mom or dad or both of them are around, they would be ordered to pay that custodian child support if it's on or as a guardian cannot do that.

So that is one of the main differences.

I wouldn't say to benefit but it is a major difference between the two .

>> Is it because Guardians generally tend to be a family member and custodians may or may not be?

Why why do you think that's a difference?

>> Well, it's a difference because it's just they fall under two different code sections.

We do actually see family members filling either of these roles.

It's rare that it's a close friend.

It's extremely rare to be someone that the child doesn't know or family or friend.

But but that does happen and it's usually unfortunately when the child doesn't have family or anyone close to them to step up, then that's the top professionals who do step up and do that for kids.

>> Well, I mean I know it's more of a I think a situation where there might be some sort of a legal situation but isn't there a cancer program?

Some people can help kids that don't have anybody to help them if they have to go to court or something like that.

>> Certainly so CASA which is a child advocacy program, those are people who step in not to fill roles as custodians or guardian.

>> Right.

They help represent the child as far as giving the court an opinion as to what's best for the child guardianship cases, those those players or those people are called guardian ad litem and they definitely feel fulfilled very similar roles and again their job is to report to the court hey, I've gone to the house, I've talked to the people in the child's life teachers, doctors, et cetera.

>> And this is really what I think was best for this child so they can witness and give an opinion then based on research or whatever that they've done.

>> OK, all right.

Well, I didn't really mean to get into that.

That's not part of our major topic.

But again, if you have some questions, give us a call here at (969) 27 twenty talking about money a little bit or lack thereof.

So say that a custodian is is receiving some compensation Jessica.

>> Do they is that for them or do they have to spend that on the child that their custodin of it is for the best interests of the child?

>> OK, so it is it needs to be focused on that particular child.

>> OK, do they receive any kind of support?

Ryan?

>> I mean you mentioned about you know, getting child support does depend on the situation or does a judge make the decision how much money needs to go to the custodian to take care of the child?

>> Child support is based upon the child support obligation worksheet which is a state form you.

It's based upon the parents incomes.

There's some other factors that go into it like health care expenses or child care expenses, things like that.

>> So it is uniquely positioned for that family, for that child there is no set amount.

Oh it's income driven.

>> OK, all right.

And I'm guessing that just like child support for divorce issues or whatever there could be legal action taken if they're not paying what they're supposed to pay certainly.

Oh yeah.

There are a lot of enforcement mechanisms in the law to make sure that parents or whoever is obligated to pay support is paying it.

>> Hey, we have a phone call.

Let's talk about that.

>> We have a phone call now from Fran and she said Is there an expiration to guardianships?

>> How about that, Brian?

Can you give us some direction on this?

So at Jessica is going to tackle our guardianships for kids beyond eighteen so I don't want to step on her toes but guardianships don't necessarily have an expiration date but they can be terminated.

So for kids typically that is when they reach the age of majority which is the age of 18 when they're legally recognized as adult maybe not always make the best decisions like we talked about but they're legally recognized as an adult and so the guardianship typically terminates upon the age of 18.

>> Does it take legal action to terminate it or is it automatic?

There are some things that do need to happen.

A guardian has an obligation to report to the court as far as an accounting so this is what I've done with my ward or incapacitated person's money and finances during the period of the guardianship make sure that they've dotted all the I's and cross all the T's and the money is all accounted for and when that happens then the guardianship can terminate except for Jessica.

>> She's ready.

She's ready.

It's OK. Go it can be extended in the case of a minor up until the age of twenty to twenty two we can go from eighteen to twenty two add some more years to however the seventeen year old along with the Guardian has to petition the court to extend it and they have to be not an incapacitated person.

>> All right so then the kid we're still calling him a kid and say sorry that's seventeen they have not reached that magic age of 18 yet to be terminated.

So still when they're seventeen they appeal is that they petition the court and they have to do a joint petition with the Guardian to extend it to the age of twenty two .

>> So both have to be in agreement the Guardian and the kid they do and it has to be not for the reasons of incapacity if the reason is for incapacity such as somebody who's maybe having autism or other types of diagnosis of that nature that are more spectrum if the issue is incapacity that is separate and needs to be addressed with more of a different type of guardianship than just this petition to extend it to twenty two, can you speak on that at all so if we're worried about capacity at the age of 18 where somebody is not able to make medical or financial decisions for themselves, we then really do need to consider whether or not we need to have doctor support, whether or not they should truly be an incapacitated person and have a permanent guardianship in place.

>> So would that go beyond a twenty two then that would that would go until either they're passing or for some reason the incapacity was already passing though the guardianship of that person would be there until that person passed away.

>> All right.

The one receiving the the help OK oh is it's complicated but not I mean what's wonderful is that there are so many accommodations now and what ten fifteen twenty years ago probably not Brian or Ryan what do you think when you deal with this all the time right now but in your early years of practice did you have that many cases of guardianships or Custodian's.

Yeah, I mean from day one I would say we've been extremely busy with guardianships with how much elder law our practice has and it's something that I got into from year one.

would say so they definitely have gotten more complex and there's more of them as my years have gone on.

But but no, there there are a lot of them out there.

Certainly there are a lot of kids and adults who need need this assistance so it's good that that's available.

>> Kini just called and he left a question for us here.

He said Is there a difference between guardianship, a guardianship and a conservative conservatorship Jessica.

>> Jessica, so Brian and I both decided to answer that one.

>> So typically in Indiana we refer mainly to it as guardianship.

So there's guardianship of the person and guardianship of the estate.

Guardianship of the person is somebody who is going to be making medical and day to day living situation choices and decisions for that individual guardianship of the estate is somebody who is going to be making those financial decisions.

OK, as far as paying bills and investments and selling property and managing property, there are some rules regarding conservatorship but generally speaking we mainly deal with it as a guardianship.

>> So then I guess I'm still understanding what the conservatorship is so some states you can get a conservatorship or it's just over the finances.

Oh okay.

Think of Britney Spears.

Oh oh yes.

>> How did I not understand your mean well a big news video is one of those states we just don't necessarily always call it a conservatorship for guardianship.

>> It doesn't always have to be a guardianship over the person and the estate.

You could have someone who is very, very good at numbers and can balance a checkbook and make good financial decisions for him or herself.

>> But for whatever reason they don't make good personal decisions as far as they don't pick the right place to live or medical decisions or simply remember to take their medication right.

>> So we all have our own strengths and weaknesses so you can divide a guardianship that way?

>> Well, I guess I'm thinking of dancing with knives at the moment.

>> Again, we're talking Britney Spears now.

>> Isn't that a case where she was in her late twenties and still her father was her cancer ?

>> Again, I'm afraid to defer to Jessica on this.

Yeah, I know you don't look at Facebook People magazine.

Yeah, to be honest, I don't remember all the facts but she was I know she was very young when it happened and it was in place for a number of years until she was older and then she was suing and wanted her father to get off of that position.

>> Different state, different laws.

>> Careful with what we say and frankly that's true.

We're not sitting here in Las Vegas having this tonight and this is Indiana.

>> So listen to them.

OK, let's see.

>> Can either one of those positions be modified or terminated?

You already said I think they could be terminated so a guardian can be replaced so we can change it can change from you know, Jessica can be guardian then I can step in for whatever reason replace her.

Same thing with a third party custodian.

The underlying consideration for the court in either case the custody case or guardianship case it's always what's best for the child.

What are the what's in the child's best interest is really the ultimate question for any judge to have answered.

>> So you know, for whatever reason let's say Jessica can't serve as guardian anymore.

She moves out of state.

She's not physically available to that child.

Well, I'm willing to do it.

>> I am available I'm a good person to make those decisions.

Judge replaced Jessica with me.

There's Jessica I have to agree with you taking over.

>> No, the judge has judged yeah.

It's a little easier if Jessica isn't it is much easier it is and that's usually where I step in when there's an argument or a dispute and and you have a trial, you present your evidence.

Do I mean you really do?

Yeah.

You tell the judge your reasons and you say the facts would support your reasoning and then it's up to the judge and the& judge will decide what's best for that child.

>> Jessica, go to the judge and give her side why she should keep it.

She can I can she can do they usually do they usually keep it.

>> Every case is different.

I will say it is it is not always easy to remove a guardian and a lot of what we see again when it's usually that grandparents stepping in in those child's younger years and then the child gets older and mom and dad or mom or dad figure it out and they say well hey, I don't need this guardianship anymore.

I can take care of my my own child.

>> Grandma and grandpa don't always agree with that.

And so then you have that dispute over I've taken care of my granddaughter for ten years.

>> I know what's best for her.

Yeah.

And then mom steps in and mom says one mom and I know what's best for my child and I will say in both areas of the law Indiana favors the biological parent.

There's a do they there's a strong presumption that even if they haven't been in charge of that child for ten years or something, that presumption still remains but that that presumption doesn't always win the day it is just a presumption.

It's something that can be overcome.

OK, anything to add to that, Jessica, and your legal experience?

>> I think you know, it's really important to talk a lot about the situation and really know honestly what is in the best interest of the child.

And so sometimes attorneys are going to have some really hard conversations with clients and try to get to the bottom of that so that they can present the best case.

>> Well, obviously it's a topic we're talking about certainly has an emotional a big emotional side too to consider another phone call for us this evening and we just have a few more minutes and I want to make sure we get to this one.

This is from Mindy and she says My job is sending me overseas and I need to leave my child with my parents.

Do I have to get a guardian ship that I would say yes so that there's somebody here to make those decisions for your child in this day and age though it's not necessary because of things like zoom and email and just teleconferences .

You know, Mindy can call in for a doctor's appointment, can call in for parent teacher conferences.

She certainly could still be very, very involved in her child's life .

It really is up to her whether or not she thinks that she needs to bestow that power upon her parents.

There's also the question of well, where's the child's father because if dad's around then the guardianship probably would never be appointed.

Oh, he'd need to have priority so it's definitely an option that she has but it's not a necessity I would say what would be an advantage?

Well, I was going to add that you could also consider a standby guardian.

So a standby guardian is a document that a parent will sign saying that if I'm incapacitated or unavailable this person can step in for an up to 90 days.

>> So if Mindy were incapacitated this grandparents could step in for 90 days.

It is OK.

It is a bandaid though and so it may not be the best solution for this situation.

So it's where I would really recommend talking with an attorney about how long we're going to be overseas, what's going on with dad and really what is the best way to proceed and probably include parents in with that conversation.

>> I know that I know, Jessica, that you've mentioned before on the show when we've talked about the guardianships and in that topic you've said if mom and dad are going to go to Europe for two or three weeks, not a bad idea to appoint a temporary guardian just in case.

>> Yeah, OK. All right, Jessica, let's ask you this here.

Can you leave the inheritance to the miners parents?

All right.

We're talking about under 18 so it's generally I will talk to clients about what that really looks like.

OK, so are we talking about a thousand dollars?

Maybe if you're wanting to leave a thousand dollars where you're going to give it to your child to kind of hold for the grandchildren maybe that's OK.

But at the end of the day if you leave it to your children it really is their inheritance .

They're not obligated to share it with your grandchildren.

And so if you really want to mak sure that it's going to your grandchild and you do need to leave it to them and if they are minors then we start talking about do we maybe put it in trust for them or do we figure out other ways to to hold it for them?

>> Could you make them a beneficiary of like an IRA or bank account or something?

>> Is that one way that you could make sure the grandchildren get it?

You can.

It is tricky though in the state of Indiana if the inheritance is over ten thousand dollars you do have to get a guardianship of the estate.

>> Oh so that somebody is monitoring those funds at least until the child turns 18.

>> Got it.

OK, see there's so many things to make sure you think about and I'm going to go back to Mehndi for a minute and say Mandy, I'm so proud of you for you know with this life change you have to try to decide and do what's legally correct.

>> We just have a minute or two left here.

>> Right.

What advice or I don't know message would you like to give people on this topic of guardianships in custody?

>> Don't rush into anything certainly reach out, talk to a lawyer, see what your options are.

These two situations are very unique but but it's important to make sure that you go into the right situation for you, your family, your child and also protect yourself if it's a parent who's agreeing to a guardianship or some sort of custodial situation, you want to make sure you understand what you're agreeing to whether or not it's permanent, whether or not it's temporary or modifiable.

So it is very, very important to make sure that you understand your legal rights as a parent or even as a grandparent or a friend who's stepping in to fill these roles .

What are your duties or obligations to the child?

Obviously it's a very serious responsibility if you're volunteering to do that you don't want to step into it haphazardly.

Good advice.

All right.

Good advice.

Well, once again I want to thank our elder law attorneys here not only Ryan Gardner but again our Jessica Thorson who's here regularly for us and you guys know what you're talking about so I appreciate you sharing that information.

Yeah, happy to be here.

>> Thank you.

Thank you.

And the rest of you always love having you with us and of course we'll be back right here this set next Wednesday night at seven thirty.

Stay safe and stay healthy in your own