Guardianships – Frequently asked questions:
What is guardianship?
Guardianship is a court proceeding in which a judge gives someone who is not the parent:
- custody of a child, [the physical body] or
- the power to manage the child’s property (called “estate”, the assets/money), or
This can be a relative, friend or someone else willing to step into the role. It is particularly important to do this if you want to name someone out of state because it may be that your state will require the Guardian to be a resident of the state otherwise. The information on this page is about Probate Guardianships. NOTE: Guardianships are often handled in probate court. But if a child is a dependent of the juvenile court, or if Child Protective Services (CPS) is involved, only the juvenile court can appoint a legal guardian for the child.
What is Probate Guardianship?
Probate Guardianship of the Person is set up because a child is living with an adult who is not a parent, and the adult needs the legal right to make decisions on behalf of the child.
There are two types of Probate Guardianship:>
- Guardianship of the Person which means the guardian has custody of the child. [the physical body]
- Guardianship of the Estate which means the guardian manages the child’s income, money or other property until the child turns 18. [ the assets/money]
You can write a letter naming a guardian for your children and keep it with your important papers or write in your Will who you want to be the guardian of your children when you pass away. But if both parents are dead, the court will decide who the guardian is. The court will try to appoint the person you wanted. But, the court will also consider what is best for your child and will ask the child what s/he wants depending on the age of the child. A child over 12 can voice an opinion.
What does a Guardian of the Person do?
For the most part, the guardian has the same responsibilities as a parent. That means the guardian has full legal and physical custody of the child. The guardian is responsible for the child’s care, including the child’s:
- Food, clothing and shelter
- Safety and protection
- Physical and emotional growth
- Medical and dental care
- Education and any special needs
- The guardian may also be responsible for the child’s behavior and any damage the child may cause.
What does a Guardian of an Estate do?
A guardianship of the estate is set up to manage a child’s income, money, or other property until the child turns 18. A child may need a guardian of the estate if s/he inherits money or assets. In most cases, the court appoints the surviving parent to be the guardian of the child’s estate.
In some cases the same person can be the guardian of the person and of the estate. In other cases, the court will appoint two different people. The guardian of the estate’s must:
- manage the child’s money,
- make smart investments, and
- manage the child’s property carefully.
When is a guardianship of the estate not needed?
A guardianship of the estate is not needed when:
- a child has no assets or inheritance
- a child only owns inexpensive toys and clothing,
- the child receives social security benefits or TANF/CalWorks (welfare)
Why would a child need a guardian?
Sometimes, no matter how much parents love their child, they aren’t able to take care of their child. Maybe one or both parents:
- have a serious physical illness,
- are in the military and have to go overseas,
- have to go to a rehab program for a while,
- are going to jail for a while,
- have a drug or alcohol abuse problem,
- have a history of abuse, or
- can’t take care of their child for some other reason.
The court will look at what is “in the best interest of the child” which is the standard for everything in this court, to make sure the child is raised in a safe, stable and loving environment. A legal guardian can care for a child when the parents aren’t able to.
If you are terminally ill, can set up a Guardianship during your life?
If you have an incurable illness, you can ask the court to appoint a joint guardian for your children. (You must have legal custody of the children to do this.) This can make the transition easier when the parent dies. It gives the sick parent the comfort of knowing their child will be safe with the guardian they chose.
If the court approves the Joint Guardianship, both you and the guardian will act as parents while you are alive. And, when you die, the joint guardian will have full custody of the child without another guardianship hearing.
Is Guardianship the Same as Adoption?
No. Here are some differences:
|In a Guardianship:||In an Adoption:|
|Parents still have parental rights. They can have reasonable contact with the child.||The parents’ rights are permanently ended.|
|The Court can end a guardianship if the parents become able to take care of the child||The legal relationship with the adopted parents is permanent and is exactly the same as a birth family.|
|Guardians can be supervised by the court.||An adopted child inherits from his or her adoptive parent(s), just as a birth child would.|
|Adoptive families are not supervised by the court.|
Do you need to go to Court to be a Guardian?
It CAN be done if the parents agree to let you care for their child and don’t want to go to court.
They can sign a notarized letter that says you have “custody” of the child. The letter should give you permission to make decisions about the child’s education and medical care. It’s also a good idea to get a medical release for emergencies. It is best to have an attorney help you with this so that you don’t run into trouble.
Remember: The parents can cancel this agreement at any time.
I have given guardianship to someone, how can I end it?
The person asking to end the guardianship must be able to prove to the court that this is “in the child’s best interests”. (See Probate Code 1601 ). If the parent wants the child to live with him or her again, the judge will want proof that the parent:
- has a stable place to live;
- has a source of income;
- is “fit” or has been sufficiently rehabilitated, and
- can provide a good home for the child.
- Remember that if the child is more than 12 years old, what he or she wants and with whom he or she wishes to live will be taken into account.
When does a guardianship end?
A guardianship ends automatically when one of these things happens:
- The child turns 18;
- The child is adopted, marries, enters the military, or gets declared an adult (emancipated) by court order;
- The court ends the guardianship;
- A different person (successor guardian) becomes the guardian; or
- The child dies before turning 18.
If you have questions about guardianship, please give me a call. I am here to help.