Probate Guardianship
ESSENTIAL RESOURCES & DOCUMENTS
Overview
This document provides information about probate guardianships for children. It includes general information about court procedures, the duties and responsibilities of probate guardians and other helpful material to assist you in fulfilling the obligations of a guardian.What is GUARDIANSHIP?
Guardianship is the appointment of an adult, who is not the parent, to be responsible for a minor and/or their estate. Appointment as a guardian requires the filing of a petition and approval by the court.If the court appoints you as guardian for a child, you will assume important duties and obligations. You will become responsible to the court. It is essential that you clearly understand your duties and responsibilities as a guardian. If you have any questions, you should consult with an attorney who is qualified to advise you in these matters.Note: If Child Protective Services is involved in the case go to juvenile court to find out what to do.Types of guardianship
- Guardianship of the Person: Guardian is responsible for the food, clothing, shelter, and health care needs of the minor, along with small scale finances.
- Guardianship of the Estate: Guardian is responsible for the significant finances (over $5,000) of the minor from inheritance/gift/court settlement, etc., a bond or a blocked account may be required to secure the estate.
- Guardianship of the Person and Estate: Guardian is responsible for all aspects of minor’s care and finances. A bond may be required.
Who Will Be The Guardian?
Statutory preferences:- One or both parents
- Person with whom minor has been living in a stable and wholesome environment
- Any person who is determined suitable and able to provide adequate and proper care and guidance for the minor.
STEP BY STEP GUIDE: FILING A PETITION FOR GUARDIANSHIP
This resource provides information about probate guardianships for children. It includes general information about court procedures, the duties and responsibilities of probate guardians and other helpful material to assist you in fulfilling the obligations of a guardian.Important Facts
- Child guardianship laws in California are primarily used to place a child in the care of a trusted adult when the child’s parents have died or are unable to properly care for the child, whether due to illness, alcoholism, or drug addiction.
- Probate courts determine whether the requested guardianship is in the best interest of the child.
- Once guardianship is established, it will remain under the supervision of the probate court until the child turns 18 or the court terminates the guardianship, whichever comes first.
- The guardian must keep the court informed of the child’s current residence and cannot move the child out of state without prior court approval.
- The guardian will also have to permit reasonable visitation between the child and his parents and abide by any restrictions the court places on the visitation.
- Guardianship of the Estate: In some instances, where the child inherits significant assets, the probate court will have to carefully consider who to appoint as a guardian of the child’s estate.
- Anyone can petition for guardianship.
Step-By-Step Guide
Before You File
Before you file a petition for guardianship, you should consider the following:- Is a guardianship really necessary?
- Have you considered the alternatives?
- Do the parents’ consent to the guardianship?
- Without parental consent, is there enough evidence for you to prove the need for a guardianship?
- Do you need legal advice or assistance?
- The child has property with a lot of value
- You live outside California
- There are other legal cases involving the child or child custody going on at the same time (like adoption, custody in family court, juvenile charges)
- The child has special needs (physically/emotionally/developmentally disabled)
- This child is Native American (because Federal laws apply)
Alternatives To Guardianship
Private Agreements
You can make a private agreement with the child’s parents to provide care for the child. A written agreement can be made showing that you have “custody” of the child with the parents’ consent. Normally it is also beneficial to secure a medical release for emergencies, especially if a parent is not readily available.Note: The parents may revoke this type of agreement at any time.
Caregiver’s Authorization Affidavit
The California Family Code allows a person who is related to a child to fill out a Caregiver’s Authorization Affidavit. The affidavit normally allows that person, as a caregiver to enroll the child in school and secure medical treatment for the child.You may read Family Code section 6550 for details about this law. The caregiver form may be available through your local county clerk’s office, through private legal publications, or from a private attorney.Note: The parents may revoke your authority or override your decision under this type of agreement at any time.
Other Financial Arrangements
The law allows parents to make other financial arrangements for property inherited by or given to their children. For instance, a blocked account and other protective measures can be used without the appointment of a guardian of the estate. Consultation with an attorney for these types of matters is highly recommended. Note: Some financial institutions, insurance companies, and courts require the appointment of a guardian of the estate before they will release funds on behalf of a minor.
Temporary Guardianship
Under certain circumstances petitioner can request and receive appointment as a temporary (30 days) guardian pending the hearing.Reasons for temporary guardianship:- Non-emergency medical treatment
- Qualify for public assistance
- School enrollment
- Mother entering military
- Desertion by parents
- Court congestion – hearing date set beyond needed to make important decisions
Investigation
Unless waived by the court, an investigation will be conducted prior to appointing a guardian (before the hearing).- If petitioner is a relative of the child: A court investigator will interview the petitioner and the child. If the child’s parents are alive and available, the investigator may interview them too and any other persons deemed essential. The investigator will set up a formal home study where they will visit the home where the child will live, do a background check on the petitioner and review the child’s school and medical records. The investigation is to determine if there is a valid need for the guardianship.
- The investigator will make a recommendation to the judge.
- If Petitioner is not a relative: the court will refer the case to the county’s Department of Human Services or Social Services to conduct the investigation.
- Social history of guardian
- Social history of minor, including special needs
- The relationship of minor to proposed guardian, and
- The anticipated duration of the guardianship and plans to provide permanent home for minor.
Appointment Of The Guardian
For your appointment as a guardian to be valid, the Order Appointing Guardian of Minor must be signed. Once the court signs the order, the guardian must take prepared Letters of Guardianship to the clerk’s office where the clerk will issue the letters.Letters of Guardianship is a legal document that provides proof that you have been appointed and are serving as the guardian for the minor. You should obtain several certified copies of the Letters from the clerk. These legal documents will be of assistance to you in the performance of your duties, such as enrolling the child in school, obtaining medical care, and taking care of the estate business.Transfer Of Guardianship
- The guardian must notify the court of any changes of address
- If the guardian and minor move to a new country, the guardian must petition for a transfer. The petition is filed in the court where the matter was heard originally. If granted, the file is transferred to the new county of residence. Transfer fees are imposed.
Termination Of Guardianship
Guardianship of the Person
A guardianship of the person automatically ends when the child reaches the age of 18, is adopted, marries, is emancipated by court order, enters military service, or dies. If none of these events has occurred, the child, a parent, or the guardian may petition the court for termination of guardianship. But it must be shown that the guardianship is no longer necessary or that termination of the guardianship is in the child’s best interest.
Guardianship of the Estate
A guardianship of the estate is automatically terminated when the minor’s estate is used up, child reaches the age of 18, or dies. Otherwise, the guardian or other interested person must petition the court to end the guardianship. Valid reasons must be stated in the petition showing why the guardianship is no longer needed, i.e., parent returns.
Resignation
A guardian can petition to resign if no longer able to perform duties.
Removal
A guardian may be removed for specific reason (i.e. misconduct) or when it is in the child’s best interest. A guardian may be removed either on the court’s own motion or by a petition filed by the child, a relative of the child, or any other interested person. If necessary, the court may appoint a successor guardian, or the court may return the child to a parent if that is found to be in the child’s best interest.
Red Flags
- Contested proceedings
- Minor’s inheritance over $5,000
- Guardian does not reside in California
- Minor has unresolved legal proceedings in other case, i.e., juvenile court, adoption, divorce.
- Minor is physically or emotionally disabled
- Minor is “gravely disabled” – mental disorder and/or alcohol/drug addiction
- Minor is Native American
FAQs
Find answers to frequently asked questions about Probate Guardianship. If you have more questions, contact Los Angeles Family Law Center today.Note: If you have an attorney, the attorney will advise you on your duties and responsibilities, the limits of your authority, the rights of the child, and your dealings with the court. If you have legal questions, you should consult with an attorney. Please remember that the court staff cannot give you legal advice.If you are not represented by an attorney, you may obtain answers to your questions by contacting community resources, private publications, or Los Angeles Family Law Center.Your Title Goes Here
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What rights does a guardian have over a minor?
As with most legal questions, it depends. There are two main types of guardianship. 1) Guardianship of the Person: the court allows physical custody and decision-making powers to be placed in the guardian and 2) Guardianship of the Estate: when the child owns property or receives benefits or income, a guardian is charged with keeping track of the “assets.” The most common type is guardianship of the person since most minors simply need someone other than a parent to be accountable for their school and medical decisions.
What effect does it have on parent’s rights?
In an adoption, parent’s rights are terminated, or removed permanently. This means a biological mother will no longer have a right to custody or visitation or to be in her child’s life. Furthermore, it gives the adoptive parent permanent rights over the child. A guardianship is different. A parent’s rights are NOT terminated in a guardianship. Nor does the guardianship provide the guardian with permanent rights over the child. It does permit the guardian, instead of the parent, to make decisions concerning the child so long as it is in effect, but it usually requires that the parent be allowed visitation with the child. The court is planning on the parent being able to care for the child at some point in the future; the guardian is merely acting as a caretaker in the meantime.
How long does it last?
A guardianship will only last as long as the court allows it to last. This is a backwards way of saying that while a guardianship order may be “final,” the guardianship itself will never be permanent and irreversible. It will end when a parent, guardian, or child request that it be terminated, and the court finds that a “change in circumstances” has occurred. This change in circumstances is necessary because a court will only support the guardianship if it’s in the “best interest of the child.” Usually, this means that a parent is currently unable to take of the child and some else is better equipped to provide a safe environment for him/her. Once the parent is back up on his/her feet and can prove to the court that he/she has overcome whatever obstacles he/she was facing, the child will be returned to the parent.
When is guardianship a good option?
Sometimes, after a parent’s rights have been terminated, the only way for him/her to get custody over a child is to seek guardianship. Even if a child has been adopted, a biological parent may seek guardianship in order to gain legal rights to a child. If a parent is currently unable to care for his/her child, but does not wish to give the child up for adoption, guardianship is a great option because it allows someone else to completely care for the child without permanently surrendering his/her rights. This is especially true when a grandparent is caring for a grandchild and needs legal decision-making power to enroll the child in school or take the child to a doctor. If a parent is incarcerated but does not have his/her parental rights terminated and wants to provide for the child, guardianship allows him/her to keep those rights and ensure the child is cared for in the meantime.
What is the most important question I should ask myself about guardianship?
“What is best for the child?”This is the question you should ask yourself because this is the question the court will be asking everyone. Put aside your pride, anger, frustration, greed, and fear and focus on what is best for the child. Often a long, drawn out court battle over guardianship is easily avoided if a parent simply nominates or consents to a guardian. On the other hand, such a battle is also avoided if the guardian is genuinely seeking to care for the child and not focused on collecting the financial state benefits that caring for a child provides. A child should have a safe, stable environment and not feel guilty for being happy outside the care of his/her parents. It is the responsibility of the guardian and the parents to ensure that this happens.
What happens if I do/do not want to find someone having guardianship of my child?
If you consent (or agree) to the guardianship: There are forms both parents must sign that indicate you wish to have a specific person named as guardian and you waive your legal right to notice (being served with papers) for the guardianship. The court will still inquire as to the reasons for the guardianship, but it will go much more smoothly than if you contest it.If you contest (or want to fight) the guardianship: Once the pares are filed and you receive notice, you should respond as the papers indicate. Usually this means appearing in court to argue against it. Seek the advice of an attorney who can help you or a self-help area in the court in your county. A court investigator will speak with the potential guardian, the child, and the parents and then make a recommendation to the court. After the investigation, you will have an opportunity to speak your opinion on whether the guardianship should or should not be granted and why at the hearing.