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
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?
How long do I serve as a
What do I do if I become
a guardian and then decide that I do not want to
be a guardian any longer?
How do I start the guardianship
What if some family members
object to my petition?
As guardian, do I have to
use my money to support the child?
Will the court supervise
my handling of the child's money?
It sounds like a lot of responsibility.
How much of my time will being a guardian require?
What else should I know about
being a guardian?
The child needs a guardian,
but his parents disagree. What should we do?
Do I need to be a guardian
if the child is staying with me?
Do parents ever become appointed
guardians for their child?
does a guardian do?
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.
long do I serve as a guardian?
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.
do I do if I become a guardian and then decide that
I do not want to be a guardian any longer?
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.
do I start the guardianship process?
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.
if some family members object to my petition?
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.
guardian, do I have to use my money to support 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.
the court supervise my handling of the child's money?
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.
sounds like a lot of responsibility. How much of my
time will being a guardian require?
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.
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?
else should I know about being a guardian?
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
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.
child needs a guardian but his parents disagree. What
should we do?
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.
I need to be a guardian if the child is staying with
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.
parents ever become appointed guardians for their child?
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.
office can help you through this entire process.
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.
If you'd like to discuss
how I may be of service to you, please call (818)
501-8355 or contact me online at DavidBaum@probatelawca.com and
permit my probate law expertise work for you. There is
no better time than now to start planning for your future
and for the futures of those who mean the most to you.