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Know Your Rights: Guardianship in California FAQs Answered

Guardianship in California is the process by which the court appoints someone other than a child’s parent to take care of the child. That person can either (1) have custody of the child, (2) manage the child’s property (“estate”), or (3) both. Guardianships are generally for children under 18 but there is an exception for persons under 21 seeking special immigrant juvenile status.

In California, guardianships can be either probate court guardianships or juvenile court guardianships. If the child is not involved in a juvenile dependency case, the guardianship case is a probate court guardianship–the focus of this post.

The Four Types of Probate Guardianships

1. Guardianship of the Person

In a guardianship of the person proceeding, the court appoints a legal guardian to care for a child when the parents are unable to. The guardian is awarded full legal and physical custody of the child and has the same responsibilities to care for the child as a parent would. An appointment of a legal guardian does not terminate a parent’s parental rights.

If it is in the child’s best interest, the court can end a guardianship, appoint a new guardian, or return custody of the child to the parents.

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Who can be a guardian of the person?

A guardian can be anyone able to raise the child and provide the child with a safe and stable environment. Relatives, family friends, or other non-parents of the child can ask to be appointed as the child’s legal guardian. Guardians can be supervised by the court.

When is a guardianship of the person needed?

A guardianship may be needed when parents are unable to care for their child. For example, when one or both parents (1) have a serious physical or mental illness, (2) are in the military and deployed overseas, (3) are in a long-term rehab program, (4) are incarcerated, (5) abuse drugs or alcohol, or (6) have a history of abusive behavior.

What are the guardian’s rights and responsibilities?

A guardian of a child has the same legal rights and responsibilities as a parent:

  • Providing food, clothing, and shelter;
  • Enrolling the child in school and staying involved in the child’s education;
  • Caring for the child’s overall health, including medical and dental treatment and mental health services, if needed;
  • Managing the child’s finances;
  • Giving permission for the child to apply for a driver’s license, enlist in the military, or get married; and
  • Being responsible for any harm or damages the child may cause, whether intentional or negligent.

2. Guardianship of the Estate

A guardianship of the estate differs from a guardianship of the person in that it is established to manage a child’s estate (income, finances, or other property) until the child turns 18. The guardian owes a fiduciary duty to the child and must follow the applicable laws to protect the child’s estate when managing the child’s money and property.

Who can be a guardian of the estate?

The court may appoint a surviving parent or another qualified person to be the guardian of the minor’s estate. Where appropriate, the same person can be appointed as both the guardian of the person and of the estate.

When is a guardianship of the estate needed?

This type of guardianship is needed when the child owns or receivables property of high value. For example, a child may need a guardian of the estate if the child inherits valuable money or property, such as a house.

What are the duties of a guardian of the estate?

A guardian of the estate owes the highest duty that the law recognizes–a fiduciary duty–to protect the child’s estate. Managing the child’s estate requires maintaining complete and accurate financial records and filing financial reports with the court, which include an inventory and appraisal of the estate.

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3. Temporary Guardianship

A temporary guardianship may be needed when there is an emergency requiring the guardianship to be set up quickly. The person requesting to be appointed as a temporary guardian must demonstrate “good cause” to the court.

Examples of when a temporary guardianship may be needed include:

  • Immediate medical treatment for the child is needed; or
  • Both parents are dead, incarcerated, incapacitated, a minor, or otherwise unable to care for the child.

Because this is considered an emergency order, the person filing for a temporary guardianship must also file for a general guardianship at the same time. A temporary guardianship usually ends when a general guardian is appointed.


4. General Guardianship

A request to be a guardian of the person or guardian of the estate that is not on a temporary, emergency basis is considered a general guardianship.

A guardianship automatically ends when (1) the child turns 18, (2) the child is adopted, marries, enters military service, or is declared an adult by court order (emancipated), or (3) the child dies before turning 18. The court can also end the guardianship by making a court order, after the judge considers what is in the child’s best interests.

Becoming a Guardian

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To start the guardianship process in California, there are several forms that must be filled out and filed with the court. California also requires the person requesting to be appointed a legal guardian to “give notice” to the child’s relatives and other persons or agencies. This step is extremely important and the rules must be carefully followed.

Anyone who agrees the person should be appointed as the child’s guardian can sign a consent and waiver of notice. It is also possible for one or both parents to object to the guardianship request.

Before the court hearing on the guardianship request, California requires an investigation be made and a report be submitted to the court. At the hearing, the judge will review the report in deciding whether to order a guardianship.

If a guardianship of the person is ordered, the court follows up with the legal guardian every year through a confidential guardianship status report. If a guardianship of the estate is ordered, there are ongoing requirements for managing the child’s estate, including filing financial reports with the court.

Guardianship vs. Adoption

A guardianship in California is not the same as an adoption in California. Key differences include:

  Guardianship

Adoption

Parental Rights

Parents retain parental rights. Parents can ask for reasonable contact with the child.

Parents’ parental rights are permanently terminated. Birth parents may be offered visitation.

Financial Obligations

Parents may have to pay child support to the legal guardian.

Terminate upon completion of the adoption process.

Duration

Can be terminated if the parents become able to care for the child. Ends automatically when the child turns 18.

The child’s legal relationship with the adoptive parents is permanent.

Birth Name

The child retains the birth parents’ name.

Adoptive parents can generally determine the child’s legal name.

Inheritance

The child does not automatically inherit the guardian’s estate upon death. Instead, this must be detailed in estate planning documents.

The adopted child automatically inherits from the adoptive parents’ estate upon death.

Court Supervision

Appointed guardians can be supervised.

Adoptive families are not supervised.

What Parental Rights Do Parents Have with a Child Under Guardianship?

When a child is under a legal guardianship with an adult other than the child’s parents, the child’s parents retain their parental rights. According to guardianship law in California, parents may ask for reasonable contact with the child. In some situations, the parent can seek to regain full custody of the child, such as when the parent returns from military deployment.

When deciding whether to order visitation to the parent or reinstate full custody of the child to the parent, the court looks at what is in the child’s best interest.


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Let the Experts Help with Your Guardianship Case

Guardianships in California can look a few different ways: it can be either a juvenile court guardianship or a probate court guardianship. Probate court guardianships include guardianship of the person and guardianship of the estate and can be temporary or general.

If you are seeking to be appointed as a legal guardian, it is important to understand the duties and responsibilities that come along with this appointment. There are also several procedures that must be followed when requesting to be appointed as a guardian in California.

Fortunately, the family law experts at Cage & Miles can help you navigate the tricky waters of guardianship in California. Contact Cage & Miles today for a free consultation with an experienced attorney to see how we can help you with your guardianship case. 

 

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