Sometimes the parents of a minor child simply cannot provide the care and supervision that child deserves. California guardianship laws establish a legal process where someone other than a parent can be responsible to care for a child and protect the child’s assets.
When is a Guardianship Appropriate?
Obviously, if a child loses both parents in an accident, someone will need to step into the parental role to protect the child. However, guardianship can also apply when one or both parents are alive but unable to properly care for their child. Some possible parental situations include:
- Military service that takes the parent out of the country
- Serious mental or physical health issues
- Substance abuse issues that require in-patient care
- Ongoing drug or alcohol abuse
- Physical abuse against the child, or
- Other specific circumstances where the child’s best interests are not served.
If a child is physically residing with an adult who is not their legal parent, that adult needs to have the ability to make certain legal decisions on behalf of the child.
Answer These Questions Before Deciding About Guardianship
Guardianship is not to be taken lightly. It is an important legal decision that will affect a child’s life forever. Before you decide whether you want to be a guardian, consider these questions.
- Are you willing to accept legal responsibility for the child? As a guardian, you have the same legal responsibilities as the parent. This could include liability for the child’s illegal acts, intentional acts, and even for negligently supervising the child.
- How will the guardianship affect your family? Do your family members support this action or will these added responsibilities cause friction? Do you have the stamina, energy, and time to devote to this child?
- Are you financially able to be a guardian? The child may receive public assistance, an inheritance, or even child support, but what if the support doesn’t come on time or the inheritance runs out? Are you willing to spend your own money to support this child?
- Do you anticipate any problems with the child’s other relatives? If the parents are alive, will they support your guardianship or oppose it? The court may grant parental visitation. Will visits cause problems?
Two Basic Forms of Guardianship
Depending on the circumstances, the probate court can appoint two types of guardians — Guardian of the Person and Guardian of the Estate. One person can be named to fill both positions. The legal standard for choosing the guardian is the same. The court must determine what is in the child’s best interests and ensure the child is raised in a stable, safe, and loving environment.
Guardian of the Person
This guardian assumes parental responsibilities for the child, including physical custody and the right to decide where the child goes to school. This guardian must provide necessary medical care, including dental, mental health, counseling, and other services as needed. Potential guardians can include relatives, friends, or other responsible people who volunteer.
This guardian is responsible for providing:
- Basic necessities such as clothing, shelter, and food
- Protection and a safe home life
- Medical care
- An environment where the child can thrive.
If guardianship is no longer needed in the future, the parents may take the child from the guardian by agreement or with court approval.
Guardian of the Estate
This guardian is responsible to manage the child’s assets, money, property, or other valuable items. The guardian of the estate owes the child a fiduciary duty, which is the highest duty recognized by California law. Basic duties include managing the child’s money, investing wisely, and caring for any property such as real estate until the child turns 18.
The guardian of the estate must file documents such as financial reports, inventories, and appraisals if the child has any valuable assets. All payments from the child’s accounts must be approved by the court and must benefit the child. The guardian must file a financial report one year after being appointed and then every two years thereafter.
Should You Become a Guardian?
To apply for the role of guardian, you must file multiple court papers, provide notice to relatives, attend court appearances, schedule court investigations, prepare and file regular reports, and much more. California has created a Guardianship Pamphlet (Form GC-205 ) that may help you decide if guardianship is right for you.
California probate laws are complicated and must be followed exactly to avoid errors and possible legal liability. An experienced guardianship attorney can guide you through the process and ensure you meet every requirement to protect you and the child.
To avoid mistakes, you should consult with a California probate lawyer if the child in question:
- owns valuable property
- lives in California but you live elsewhere
- is the subject of other court cases such as custody battles or adoption proceedings
- has special needs such as mental or physical impairments, or
- is a Native American, because federal laws may apply.
Attorneys Deirdre Kingsbury and Noreen Evans understand the legal intricacies involved in guardianship and family matters. If you are considering becoming a California guardian, they can answer all of your questions in advance and explain your obligations. At Evans Kingsbury LLP, we are family, guardianship, and probate lawyers with decades of experience. Call us today at (707) 596-6090 or fill out our easy contact form to discuss your situation.