In California, the guardianship process is when the court names someone to care for a child other than the parent. This person may either have the ability to make decisions regarding the person (school, medical, extra-curricular, travel), or manage their property and financial assets (estate) or both. The Guardianship is usually for minors under 18, but it can be granted to persons younger than 21 who are seeking special juvenile immigrant status.
A guardianship proceeding in California are either in juvenile court or probate court. The guardianship is probate court if the child's case does not involve a juvenile dependency. Depending on where the guardianship proceeding is brought will depend on the law that is applied. Juvenile and Probate guardianships are governed under different sections of the law and differ slightly; however, at the core of both rests the best interest of the child.
There are four types of guardianships in probate.
1. Protecting the person
The court will appoint a legal caregiver to take care of a child if the parents cannot. A guardian has full custody and legal rights of the child, and the same duties as parents. The appointment of a guardian legal does not end a parent’s rights.
The court may terminate a guardianship if it's in the best interests of the child, name a new one, or give the custody back to parents if that is the case.
Who is a person's guardian?
Anyone who can raise the child in a stable and safe environment is a guardian. Family members, friends, or careproviders can be asked to become the legal guardian of the child. The court can, and will, supervise guardians throughout the guardianship.
When do you need to have a guardianship?
When parents cannot care for their children, a guardianship is needed. When one or both of the parents have serious mental or physical illnesses, are deployed abroad, are in long-term rehabilitation, are incarcerated or abuse alcohol or drugs, a guardianship may be necessary.
What are guardians' rights and obligations?
The guardian has the same rights and obligations as a parent.
- Food, Clothing, and Shelter;
- Enrolling the child in school, and being involved with their education.
- Care for the child's health in general, which includes medical treatment, dental care, and mental health treatments, as needed.
- Manage the finances of the child (estate);
- Permission to enlist the child in the military;
- Permission to consent to the minor obtaining their driver's license;
- You are responsible for the harm and damages that your child causes, regardless of whether it is intentional or negligence.
2. Guardianship of Estate
The guardianship is different from the guardianship for the person because it's established to take care of a child’s assets (such as income, finances or property) up until they turn 18. When managing the money and assets of the child, the guardian has a duty to him or her.
What is a guardian?
A court can appoint the surviving parent, or any other qualified person as the guardian for the estate of a minor. The same person may be named both as guardian and estate, if appropriate.
When do you need a guardianship?
A guardian of the estate is required when a child has high-value property or receivables. A child might need to have a guardian if they inherit money, property or a home.
What is the role of the guardian?
The guardian is obligated to protect the estate of a child, which is the highest legal duty. Maintaining complete, accurate and up-to-date financial records is essential to managing the estate of a child. Financial reports must be filed with the court and include an appraisal and inventory.
3. Temporary Guardianship
In an emergency, a temporary guardianship is needed. A temporary guardian is appointed when a person can demonstrate to a court that they have "good reason" for the appointment.
Some examples of situations where a temporary guardianship is needed are:
- The child needs immediate medical attention;
- The child's parents have died, are incarcerated or incapacitated. They may also be minors, in prison, or otherwise incapable of caring for their children.
A temporary guardianship is not considered a valid emergency order. Therefore, the person who files for it must also apply for general guardianship. A temporary guardianship ends usually when a permanent guardian has been appointed.
4. General Guardianship
General guardianship is a request for guardianship of a person or estate, which is not temporary and emergency.
The guardianship ends automatically when: (1) the child turns 18; (2) the child gets married, is adopted, goes into military service or declared adult by a court (emancipated); or (3) the minor dies. A court may also terminate the guardianship after a judge has considered what's in the best interest of the child.
Becoming a Guardian
In order to begin the guardianship process there are a few forms which must be completed and submitted to the court. California requires that the person who wants to become a guardian must "give notice" of their request to other people or agencies, as well as the child's family. It is important to follow the guidelines.
Signing a waiver and consent form is a way for anyone who accepts that the guardian should be the individual to whom the child will report can agree. One or both of the parents can also object to a guardianship request.
California mandates that an investigation and report are submitted to the Court before the hearing. The judge will use the report to decide whether or not a guardianship should be ordered at the court hearing.
The court will follow up on the guardianship every year by sending a confidential report to the guardian. When a guardianship is granted, the legal guardian must continue to manage the child's assets, which includes filing regular financial reports.
Guardianship vs. Adoption
Adoption and guardianship are not the same thing in California. The following are the main differences:
Parental rights are retained by parents. Parents have the right to request reasonable contact with their child.
The parental rights of the parents are terminated permanently. Visitation may be granted to birth parents.
The legal guardian may be required to collect child support from the parents.
Terminate the process upon adoption.
The contract can be cancelled if parents are able to take care of the child. The child's 18th birthday is the end of this program.
Adoption is a permanent legal relationship between the child and his adoptive parents.
The name of the child's birth parents is retained.
In general, adoptive parents are able to determine the legal name of their child.
When the guardian dies, the child is not entitled to inherit their estate. This must be specified in the estate planning documents.
Adopted children inherit automatically from their adoptive parents estates upon death.
The appointed guardians may be monitored.
Families adoptive are not monitored.
What are the parental rights of parents with respect to a child under guardianship?
The child's parental rights are not affected when a child has been placed under the legal guardianship of an adult who isn't the child’s parent. California guardianship laws allow parents to request reasonable contact with their child. Parents can sometimes seek full custody when they return from military service.
The court considers the best interests of the child when determining whether or not to grant visitation rights to a parent or to restore full custody to that parent.
We can help with your Guardianship case
California guardianships can take on a variety of forms: they can either be a guardianship by a court for juveniles or one that is administered through a court probate. The guardianships of probate court can include both guardianships of person and estate. They can be either temporary or permanent.
It is essential that you understand your duties and responsibilities if you want to be named as a guardian. In California, there are several steps that you must follow when applying to become a guardian.