Guardianship is a legal procedure by which an adult is given court ordered and supervised responsibility and authority to care for a minor. Guardianship may be necessary if a child’s parents die leaving the child orphaned, if the child has been abandoned, is being abused or if the child is not being adequately provided for by its parents. Guardianship may also be a precondition of the payment of life insurance benefits or litigation settlements to a child upon the death of its parents. Finally, guardianship may arise in cases where a child’s parents are unable to take care of their child and call upon the child’s grandparents or other relatives to raise the child until the parents can reassume their parenting roles.
What does a guardian do?
In California the Court can appoint two different types of guardians: 1) Guardians of the Person; and 2) Guardians of the Estate. A guardian of the person takes care of the child’s personal needs. That guardian will decide where the child will live, where the child will attend school, and that guardian will be allowed to consent, on the child’s behalf, to all necessary medical care and treatment. A guardian of the estate may also be appointed by the Court. The guardian of the estate manages the child’s assets including the child’s bank and investment accounts, collecting benefits to which the child is entitled, processing and prosecuting claims or receiving payments as a result of settled or adjudicated lawsuits and/or receiving payments on life insurance policies. In cases of parents who die unexpectedly or suddenly, the child’s parents’ Last Will and Testament may specify who the parents nominate to serve as guardians.
How long do I serve as a guardian?
Once a guardian is appointed for the estate and/or the person of the minor child, the guardianship will typically last until the earliest of one of the following occurrences:
- The Court decides that the child no longer requires a guardian and by court order terminates the guardianship;
- The child reaches the age of majority which in California is age eighteen;
- The child dies;
- In the case of a guardianship of the estate the child’s assets are fully spent and there is no more money or estate to manage;
- The child’s parents petition the court for termination of the guardianship on the grounds that they are prepared to resume their roles as parents. Such a petition must be approved by the Court before the guardianship will be terminated based upon the best interests of the child.
What do I do if I become a guardian and then decide that I do not want to be a guardian any longer?
You are not required to continue to serve as a guardian if you do not wish to do so but you cannot simply resign. Instead you will have to obtain permission from the Court to do so. If the Court feels that the guardianship should continue the Judge will appoint a successor guardian.
How do I start the guardianship process?
Guardianship is a legal procedure and as such it is started by hiring our office to prepare the Petition for Appointment of Guardian and related paperwork which we will file for you. Once the paperwork is completed and signed by the proposed guardians and after it is submitted to the court, in most counties a Court Investigator is appointed by the judge to interview the petitioners (you), the child if he or she is of an appropriate age, and his or her mother and/or father if they are alive and available to be interviewed. The investigator will make recommendations to the judge in a “Probate Investigator’s Report” which the Court will review before ruling on your petition. A court date will be scheduled and the judge will decide if your petition should be granted and if so under what terms and conditions. The court hearing on the petition is usually quite brief in the absence of objections. In order to approve your petition the Court must make a legal determination that the minor’s best interests will be served by the appointment of a guardian.
What if some family members object to my petition?
Guardianships are granted because the judge finds that it would be detrimental to the child to not appoint a guardian. Sometimes the Judge finds specifically that it would be detrimental to the child for his or her parents to make guardianship decisions about the child because of the parents’ behavior, lifestyle or legal entanglements. Quite often the biological parents will voluntarily consent to the guardianship by abandoning the child in the custody of grandparents and then the parents will drop out of sight or fail to communicate with the child for extended periods of time. Should there be objections to your petition the judge will order a hearing and may even appoint an attorney to represent the child’s interests and to make recommendations to the Court on the child’s behalf.
As guardian, do I have to use my money to support the child?
The short answer to this question is no. After all guardianship does not terminate the biological parents’ rights. It only shifts the responsibility for caring for the child on a day to day basis to the guardian. The biological parents remain legally responsible to support their child. If the child has assets, the judge may authorize the guardian to spend those assets for the health, maintenance, education and support of the minor child. There are some situations where the financial obligation of taking care of the minor child becomes that of the guardian. While the guardian may apply for benefits to which the child is entitled (like MediCal, food stamps and Social Security benefits) in some cases the guardian may put out some of his or her own money to provide for the child.
Will the court supervise my handling of the child’s money?
There are very strict laws restricting the use of the child’s funds by the guardian of the estate. The funds must be used for the minor’s benefit and depending upon the amounts of money to be used and the purpose to which the money is to be put our office may recommend seeking preapproval of the expenditure by the judge before any large expenses are incurred. We continuously assist our clients in making legal and good choices when it comes to using the minor’s money so as to avoid future problems with the Court. The judge may also impose restrictions on any funds received by the guardian of the estate. Guardians of the estate are required to account to the court in a formalized accounting every two years. Our office will assist you in the preparation of the accounting required by the Court. The Court may also require the guardian of the estate to post a surety bond to assure that the guardian will not steal or misuse the child’s money.
It sounds like a lot of responsibility. How much of my time will being a guardian require?
Before you file a petition seeking to be appointed as guardian you should carefully consider whether or not you are prepared for the challenges and responsibilities involved. Since guardianship requires ongoing responsibilities do you have the time and desire to fulfill those responsibilities? Do you have a good relationship with the minor and do you want to serve as the child’s “legal parent” during the balance of the child’s minority or at least during the period of time that the child is under your guardianship? If you don’t have a close relationship with the child or if you do not feel that you will be able to treat the child as a parent would then perhaps you are best off not seeking appointment as guardian.
If you petition to become guardian of the estate you will be required to keep records, to handle banking and all other financial transactions for the child’s benefit. Do you have the ability to do this work? Are you willing to work closely with your attorney to do the best you can for the child? There is time involved in keeping records, paying bills and interacting with attorneys and accountants – – do you have the time to spend on these critical matters?
What else should I know about being a guardian?
Parenting takes time and energy under the best circumstances. Since guardians step into the role of being surrogate legal parents to the child they must be sure that they have the time and energy to care for and raise a child. Sometimes guardians already have families and children of their own and taking on responsibility for an additional child requires a substantial commitment. As you think about whether you can serve as a guardian, you may want to think about how your decision may impact on your own family, your health, your employment and whether or not you have the stamina and devotion to the child which is necessary to be a guardian. After all, the child is depending upon you (and so is the judge) to provide the parental guidance which is absent from the child’s life and to take good care of the child which, hopefully, is why you are seeking appointment as guardian in the first place.
Additionally the financial implications of guardianship must not be ignored. Should the child receive income from social security or other public welfare or assistance programs it still may not be sufficient to support the child at a reasonable level. Should that be the case and should there be no other benefits are you prepared to spend some of your own money to help raise the child? If you are not, then you probably should not be volunteering to be guardian.
The child needs a guardian but his parents disagree. What should we do?
Because not all guardianships involve children whose parents are deceased we can’t speak about guardianship without acknowledging that sometimes the child’s parent(s) may nominate you to serve as guardian and then, after you have been appointed, resent the fact that you are the guardian. They can become hostile, antagonistic and/or interfering. Quite often it is the child who is hurt when the parents behave in such an antagonistic, interfering and hostile manner and most guardians recognize that they owe it to the child to stand up to the bullying from parents who are unable to parent but are reluctant to let go of their control over the child.
Do I need to be a guardian if the child is staying with me?
If a child is only staying with you for a few weeks or months (while his or her parents are on vacation or on an extended trip) you do not need a formal guardianship. There are legal papers which can be signed by the parents authorizing you to consent to emergency health services for the child. But if you plan on taking care of the child for a period in excess of two or three months you will probably find it necessary to seek court appointed guardianship. Without such an order you may find it impossible to register the child at school and to obtain medical care on a regular and/or emergency basis.
Do parents ever become appointed guardians for their child?
It is a very rare instance when biological parents of a child must seek court orders appointment them as “guardians of the estate” of their child. The need for such an order often arises when the child is to receive a substantial amount of money usually as the result of a catastrophic injury to the child or to the child’s parents. In those instances insurance companies or other institutions are usually unwilling to turn over assets to the parents of a child that are intended for the child. They fear that the parent will take the money which is suppose to be used for the child and spend it improperly. To prevent this from occurring many insurance companies and institutions which pay out judgments or settlements as a result of lawsuits require that a guardianship of the estate be established so that money to be paid can be paid into a blocked bank account for the child’s benefit.
Our office can help you through this entire process.
We will assist you by providing clear and honest answers to all of the questions you may have about guardianship and your plans of possibly becoming a guardian. Once you have reached the decision to become a guardian we will prepare all legal paperwork for you and represent you in court through the completion of the establishment of the guardianship (in cases of the guardianship of the person only) and through the completion of the guardianship of the estate when the child turns age eighteen. Fees for our ongoing professional services, after you are appointed as guardian, are subject to Court approval before payment which assures you that the Court has determined that the fees payable to our office are fair and reasonable. There are also court costs associated with appointment of a guardian but they are reimbursable from the child’s estate upon appointment.
In California guardianships are used for persons under the age of eighteen. In cases where a minor is to receive an inheritance, personal injury award or proceeds of insurance from a deceased family member it may be necessary that the minor’s parent(s) or another responsible adult be appointed by the Court as a guardian of the minor’s estate before the insurance company or executor of the estate which is paying the inheritance will deliver the funds for the minor. This may occur even if one or both parents are alive especially in cases where insurance proceeds are to be paid.
In instances where a biological parent is unable to provide for a minor, other family members may seek appropriate court orders seeking to be appointed guardians of the minor for the protection of the minor until the parents are better positioned and ready to resume the task of active parenting. A frequent example of this is found when grandparents take over the responsibility of raising their grandchildren. In those instances the Court may appoint a guardian of the person of the minor to provide a place for the minor to live and to make arrangements for the minor’s health, education and maintenance.