Most people recognize a “Probate” as the Court’s processes and procedures that are needed to administer an individual’s estate after that individual’s lifetime. Conversely, one can simply describe a Guardianship as a “Probate during a minors lifetime”.
A Guardianship is the Court’s processes and procedures where the Probate court gives an adult person, who is not the minor’s parent, custody of that minor, a person who is younger than 18 years of age, (Guardianship of the Person), or the authority to manage the minor’s estate (Guardianship of the Estate), or both when the minor is in need of stability and when the minor’s parents are unable to provide for the minor’ care. A guardianship is used only for a minor.
For the parent of a minor child, a Guardianship is unthinkable. Unthinkable because it means the parents are deceased, or they are unfit or unwilling to care for their minor child(ren), making that child(ren) a Ward of the State.
First some simple definitions:
Guardianship of the Person – A Court appointed responsible adult individual, whose duty it is to protect and care for a minor, who for the most part has the same responsibilities as a parent. The Guardian of the Person will be responsible for the child’s: safety and protection, their education, their health, dental and vision care, their physical and emotional growth, food, shelter & clothing.
Guardianship of the Estate – A Court appointed responsible adult individual, or an entity, whose duty is to manage a child’s money, income, or other property of the child until the child turns 18 years of age. Guardianship of the Estate is commonly requested when a minor inherits or when there are proceeds from litigation and placing the funds in a blocked account is not advisable.
Probate Guardianships – These are based on laws found in the California Probate Code and Family Code. A probate guardianship is a court process by which a person other than a parent is given custody of a child or authority over the child’s assets. The probate guardianship typically lasts until the child reaches the age of 18, or the child is adopted, marries, or is emancipated by a court order, enters military service, or dies. If none of these events have occurred, the court may be petitioned to terminate the guardianship.
Temporary Guardianship – In certain urgent situations a temporary guardianship of the person or the estate or both may be appointed until the petition for appointment of the guardian is concluded.
In California, a guardianship proceeding is initiated by an adult individual (a petitioner) who asks the court to be appointed as a Guardian of either the person or the estate, or both depending on the proposed child’s needs.
Before a petition for guardianship is filed the petitioner should evaluate if the guardianship is necessary. Evaluate alternatives; do the parents’ consent to the guardianship, and if the parents do not consent do you have sufficient evidence to convince the court there is a need for a guardianship. If the court decides there are other ways, the court may not grant the guardianship.
If the Court does not grant the guardianship, alternatives are the use of private agreements with the child’s parents. The agreement may allow the “custody” of the child with the parents’ consent. Medical releases in case of emergencies may also be obtained. Caution should be used with private agreements as the parents may terminate these agreements at any time.
In California under the Family Code a person related to the child may complete a “Caregivers Authorization Affidavit” which would allow the person to enroll the child in school and secure medical treatment for the child.
Blocked accounts may also be used for property that may be left to the child as an inheritance or gifts to the child.
Guardianships are complex, convoluted, and frustrating – even the “simple” ones often result in an emotional unfortunate storm. Due to the nature of the Guardianship court proceedings, the administration, and the potential liability to the Guardian, one should always consult a competent attorney, and most Guardianships will require the representation of competent attorneys. Copenbarger & Copenbarger have assisted family members and loved ones in establishing Guardianships, and we are here to help you, counsel you, and guide you through this process and procedure.
