The Guardianship Book for California: How to Become a Child's Legal Guardianby Emily Doskow, David Brown
Thousands of children in California need legal guardians because their parents have died, abandoned them or are otherwise unable to care for them. The Guardianship Book for California provides the step-by-step instructions caring adults need to obtain a legal guardianship without a lawyer. Learn how to: decide whether to obtain a legal guardianship find… See more details below
Thousands of children in California need legal guardians because their parents have died, abandoned them or are otherwise unable to care for them. The Guardianship Book for California provides the step-by-step instructions caring adults need to obtain a legal guardianship without a lawyer. Learn how to: decide whether to obtain a legal guardianship find out if you are eligible to enroll a minor in school and make medical decisions without becoming a legal guardian use alternate forms if a legal guardianship is not practical obtain a guardianship for finances or for personal and physical care of a minor, or both prepare, file and have guardianship papers served appear before a judge obtain a temporary guardianship in an urgent situation deal with institutions and agencies with or without a guardianship schools, medical facilities, insurance companies, public assistance agencies and more end a guardianship The 7th edition is completely updated with the latest laws, and includes all the necessary forms and instructions for becoming a legal guardian in California.
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Read an Excerpt
A legal guardianship is created when a court appoints an adult to be responsible for a minor who isn't already the adult's child (although they may be related). The adult steps into a parenting role, becoming legally responsible for taking care of the minor's physical needs, managing the minor's assets, or both.
How This Book Can Help You
This book gives helpful information about legal guardianships of minors in California. We
provide forms and instructions you can use to obtain a guardianship without a lawyer's help. We also alert you to some situations where a lawyer's help is recommended, and give you tips on finding and dealing with lawyers.
The Guardianship Book for California is specifically directed to the adult who is planning to be the guardian of a minor. However, if you are a minor's parent, or an adult friend or relative who wants to designate someone else as the minor's legal guardian, you can easily modify the instructions in this book to fit your situation. (If you are a minor who is at least 12 years old, you also can petition to have a guardian appointed for you. Minors may also want to contact an organization that gives information, referrals, and legal assistance to children -- confidentially and generally free of charge. See "Resources for Minors" in Chapter 13.)
If you're wondering whether to seek a legal guardianship, this book can help you decide. In some situations where an adult cares for a minor, a legal guardianship may not be desirable or practical, or there may be easier ways to handle the situation. For example, where a stepparent is taking care of a minor, adoption or a legalguardianship might not be necessary, but some documentation is still advisable.
We discuss alternatives to a legal guardianship, and provide you with forms you'll need and
instructions for completing them. We give you practical information on dealing with schools,
medical facilities, insurance companies, Social Security, and U.S. passport offices.
In addition, we discuss the legal responsibilities of a guardian and list things you should
consider in order to figure out whether you want to accept the responsibilities and duties of
a legal guardian.
The actual process of getting a guardianship is not difficult. It will require that the proposed guardian and the minor make at least one appearance in court. In most situations, this is entirely routine, and you will have no difficulty as long as you follow the detailed instructions in this book. The only other equipment you'll need is patience -- for completing the required forms and dealing with the legal bureaucracy.
Throughout the book you will encounter references to California law, called legal "citations." If you are interested in doing legal research, you can look up these citations. (Legal research is discussed in more detail in Chapter 13.)
What This Book Does Not Cover
While this book provides all the help most people will need to obtain a legal guardianship, it does not cover every possible situation. There are some situations where you should consult a lawyer. Some examples are listed here.
What Is a Guardianship?
If anyone objects to (contests) the guardianship, or if anyone tries to have you removed
after you are named guardian. These are unusual occurrences, but sometimes they do happen.
If you are seeking a guardianship to manage substantial assets inherited by a minor -- usually $5,000 or more. Although we provide all the information and forms to obtain the guardianship, we do not give step-by-step instructions on how to manage the minor's assets, arrange to have the estate appraised, prepare and file a required Inventory and Appraisement, or prepare and file periodic accountings with the court in future years. Normally the help of a legal professional and perhaps an accountant is in order here -- and this help can be paid for
out of the minor's estate. (See Chapter 10.)
If you want to become guardian of a minor who lives in California, but you live in another state, you'll need help from a lawyer. If there are any unresolved legal proceedings affecting the minor, you'll need to talk to
a lawyer. This includes adoption, divorce, custody, juvenile charges against the minor, or other proceedings that have not been finally settled by a court.
If you want to become guardian of a minor who is physically or emotionally disabled, such as a minor on leave from the California Department of Mental Health or the State Department of Developmental Services, an attorney's help is advisable, to determine whether the minor can be
protected by additional means such as establishing a "special needs trust."
If you want to become guardian of a minor who is "gravely disabled" because of a mental disorder or chronic alcoholism, a special type of mental health conservatorship must be established -- and a lawyer will have to help you with that. If the minor is a Native American (American Indian), the case will be subject to special federal laws. In this area, you will need the help of an attorney.
A guardianship is not a termination of parental rights. It is simply a custody order, giving
someone other than a parent legal custody of a minor. All minors must have an adult who is
responsible for them. This makes sense -- after all, you can't expect a six-year-old to register himself in school, open a checking account, pay bills, or apply for Social Security benefits or public assistance. A court-ordered guardianship is simply legal recognition that an adult has responsibility for taking care of the physical needs of a minor, or for handling the minor's assets.
When you are appointed guardian of a minor, you must serve as guardian until you're legally released by the court from your duties. This could be when the minor reaches age 18, or earlier if the court ends the guardianship or your role as guardian -- for example, if it is determined that you are no longer an appropriate guardian. (See Chapter 12 for information on when and how guardianships are ended.)
While at first it may seem that the biggest burden of becoming a guardian is entering into a long-term relationship with a California court, in reality you typically have little contact with the court after the guardianship is in place. The biggest burden of becoming a guardian, at least when you are guardian only of the minor's person, is the initial appointment process. After that, you have only annual reports to file to keep the court informed of the minor's status.
If you are guardian of a minor's estate (handling the minor's assets), you must have the minor's assets appraised and file a document listing details of what the minor owns, and you must periodically file detailed financial statements. But if you are just going to be guardian of the minor's person (having physical custody of the minor but not managing substantial property she owns), you probably will not have any contact with the court after you are appointed guardian.
A guardianship is not necessary for an "emancipated minor." In California, this is
someone under 18 who has achieved legal adult status by marriage, military service, or court order (FC § 7002). A guardian cannot be appointed for a minor's person if the minor is married or has been divorced, although a guardian could be appointed for such a minor's estate. If a minor's marriage has been annulled, a guardian could be appointed for his person, estate, or both. (See below for more information on the difference between guardianship of a person and an estate.)
Guardianships, Conservatorships, and Adoptions
Guardianships are often confused with conservatorships, which are similar proceedings with the important difference that they involve adults, not minors. If you have a relative or know
another adult who needs significant care, a conservatorship, not a guardianship, would be the appropriate procedure. Adoption is a very different type of legal proceeding. The most important difference between a guardianship and an adoption is that an adoption creates a
permanent parent-child relationship, while a guardianship does not.
A guardianship is a temporary relationship that ends when a minor reaches adulthood, if not before. It also doesn't change the relationship between the minor and the minor's legal parents, who are still required to support the child. In addition, the child will still inherit
from the natural parents. A guardianship can be limited to either the minor's person or the minor's estate, but an adoption creates a parent-child relationship that means the adopting parent is responsible for every aspect of the child's well-being. That relationship is permanent -- once a child is adopted, the parent-child relationship can't be ended except in very unusual circumstances.
Two Types of Guardianships
In California there are two types of legal guardianships for minors: guardianship of the
person and guardianship of the estate (property such as money, stocks, and real estate). An adult can be named guardian of a minor's person, estate, or both. The general term "guardianship" is commonly used to cover both types.
Guardianship of a Minor's Person
A guardian of the minor's person has legal custody of the minor and is responsible for taking care of the child's well-being. The guardian would provide food, shelter, and
health care and take charge of the minor's educational and religious development. Generally, the guardian has the same right as the parent to consent to or require medical treatment for the minor. In most instances, the minor is or will be living with the proposed guardian, who must have an established permanent residence for the minor in California. A guardianship is not affected if the minor attends and lives at a boarding school or camp for a substantial part of the year.
A guardian of the minor's person usually
may handle relatively small financial matters on behalf of the minor. For example, a guardian may handle income of no more than $300 per month, plus public assistance benefits without having to also become guardian of the minor's estate. The guardian of a minor's person can receive benefits for which the minor qualifies, like welfare or Social Security, unless the agency dispensing benefits specifically requires a guardianship of the minor's estate. Letters
of Guardianship of the Person, discussed later, often will specifically say that the guardian does not have the authority to take possession of property.
Guardianship of a Minor's Estate
A guardianship of the minor's estate is necessary if the minor has substantial assets, such as through an inheritance.
Generally, you need a guardianship of the minor's estate to handle an inheritance even if
you are the minor's parent. However, a minor's parent may hold her child's property without
obtaining a guardianship of the estate if the minor's property is worth less than $5,000 (PC
§§ 3400), or if the Uniform Transfers to Minors Act (UTMA) or a trust is used.
If you are going to be handling relatively complicated or extensive financial matters for
a minor, you will probably need to become the guardian of the minor's estate. A guardianship
of a minor's estate may be needed in the following circumstances.
- The minor has, or is going to receive through a gift or inheritance, assets worth over $5,000. (There are ways to avoid this type of situation, such as by using the Uniform Transfers to Minors Act (UTMA). See below.)
- The minor is the named beneficiary of insurance money or other assets, and estate planning measures were not taken.
- The minor is entitled to receive financial benefits, and the agency dispensing benefits
specifically requires guardianship of the minor's estate.
- You were named guardian of the minor's estate in a will, and the person who wrote the will dies.
- A court determines that a guardianship of the minor's estate is necessary.
If the minor is living with you and you plan to apply for welfare or other public assistance
benefits, you will need to become guardian of the minor's person only unless the agency requires otherwise.
If either or both of the minor's parents is alive, the minor's money may not be used to support the child -- the parents are still responsible for support unless a court orders otherwise. If the parents are deceased or unable to support the child, though, the guardian is required by law to use the estate money and other assets to provide "comfortable and suitable support, maintenance, and education" for the minor as well as for "those legally entitled to support, maintenance, or education" from the minor (PC § 2420). The guardian must preserve the assets of the estate for the minor (PC § 2401). This means that the court wants to ensure that the guardian handles the minor's assets wisely, and doesn't steal any money.
Once you've established a guardianship
of a minor's estate, you'll need to get professional help to maintain the guardianship. This book instructs you on how to become the guardian of a minor's estate. However, once you are appointed guardian, you may need to be bonded by a surety company, and to have the minor's property appraised by a probate referee. You will need to file a document with the court itemizing the estate's property and appraisal values, file periodic detailed accountings with the court, and possibly attend several court hearings. You will need to hire a legal professional if you become the guardian of a minor's estate, as the details are beyond the scope of this book. (Chapter 10 has more about what's required for guardianship of a minor's estate. And Chapter 13 has information about finding and dealing with lawyers.)
Choosing the Type of Guardianship You Need
Depending on your situation, you may need a guardianship of the minor's person, estate, or
both. To help you determine which, refer to the accompanying box, and consider the following
When Fred is five years old, his mother is unable to take care of him because of personal problems, and Fred's father is dead. Fred's Aunt Ethel wants to take care of him but she is financially strapped. Aunt Ethel applies for welfare, but is told that in her county she must become Fred's legal guardian before benefits will be paid. As the welfare agency in her county does not require guardianship of the estate, Aunt Ethel obtains a guardianship of Fred's
person, which enables her to receive Fred's benefits. The county requires that she keep records of how money is spent on Fred's behalf, but the record-keeping requirement is minimal.
Jaime is 15 when his mother, Ellen, decides to go into the military. She discovers that they will not accept her if she has custody of her son. Jaime's father is in jail and has never supported or visited his son. Ellen asks her parents to take care of Jaime while she is in the service, which will probably be at least three years. To deal with the military's "no custody" rule and because it's a good idea anyway, she asks her parents to become Jaime's legal guardians. They obtain guardianship of Jaime's person. (In some cases, the caregivers' affidavit will be accepted by the military instead of a court guardianship. Check with your local JAG officer.)
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