Chapter 1
Introduction: An Overview of Guardianships

How This Book Can Help You.................................................................... 2

What This Book Does Not Cover................................................................ 3

What Is a Guardianship?............................................................................. 3

Two Types of Guardianships...................................................................... 5

Guardianship of a Minor’s Person......................................................... 5

Guardianship of a Minor’s Estate........................................................... 5

Choosing the Type of Guardianship You Need.................................. 6

Is a Guardianship Really Necessary?....................................................... 8

Do You Need a Guardianship of a Minor’s Person?.......................... 8

Do You Need a Guardianship of a Minor’s Estate?............................ 9

Should You Be the Guardian?................................................................. 11

Do You Want to Be the Guardian?...................................................... 11

Are You an Appropriate Choice for Guardian of a Minor’s Person? 11

Are You an Appropriate Choice for Guardian of a Minor’s Estate? 13

Are There Reasons That You Shouldn’t Be Named Guardian?.... 13

Do You Need an Attorney or Other Legal Professional to Help You
   Petition for Guardianship?..................................................................... 15

Using This Book.......................................................................................... 16

The Vocabulary of Guardianships....................................................... 17

Guardianship Forms.............................................................................. 17

A legal guardianship is created when a court appoints an adult to be responsible for a minor who isn’t that 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, 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 legal guardianship 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.

Legal Citations

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.) Abbreviation      Legal Reference CC                    Civil Code CCP                  Code of Civil Procedure CRC                  California Rules of Court EC                    Education Code FC                    Family Code PC                    Probate Code W&I                   Welfare & Institutions Code USC                  United States Code

 

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.

• If anyone objects to (contests) the guardian­ship, or if anyone tries to have you removed after you are named guardian, hire a lawyer. 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—a lawyer can help with the special requirements. 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 Appraisal, or prepare and file periodic accountings with the court after the guardianship is established. 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.

What Is a Guardianship?

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 for 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.

Guardianships Require Court Proceedings

There are a couple of fairly common mistaken assumptions about guardianships. For example, some people think that a guardianship can be established informally with just an agreement between the child’s parent(s) and the person they want to act as guardian. This isn’t true—the only way that you can become a legal guardian is through a court order. There are some circumstances where a simple authorization will be enough, though. See “Is a Guardianship Really Necessary?” below.

The other common mistake people make is thinking that when parents name a guardian for their children in a will, that person automatically becomes the guardian if the parent dies. In fact, even if you are named as guardian in a deceased parent’s will, you still have to file a request to be named guardian and ask a court to confirm the parent’s wishes.

So, don’t think that you can rely on a parent’s written nomination. You will need a court’s approval for a legal guardianship.

 

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 the minor 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 growth and 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.

 

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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 the child’s property without obtaining a guardianship of the estate if the minor’s property is worth less than $5,000 (PC §§ 3400–3402), 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.

 

caution

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 examples.

Example 1:

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.

Seeking Guardianship of a Minor’s Person, Estate, or Both

You will need a guardianship of the minor’s person if:

•  The minor is or will be living with you for an extended time period and you believe it is best that you (rather than a parent) have legal
custody.

•  You will be receiving benefits on behalf of the minor, and the agency giving the benefits requires guardianship of the minor’s person, but does not require you to be guardian of the estate.

•  Your health insurance plan requires a legal guardianship before it will cover the minor.

•  You were named guardian of a minor’s person in a deceased person’s will, and you intend
to have the minor live with you or to care for her needs.

You will need a guardianship of the minor’s estate if:

•  You were named guardian of a minor’s estate in a deceased person’s will, there were significant assets left to the minor, and you intend to administer those assets for the minor.

•  You are the person responsible for managing a minor’s business affairs, and will receive insurance benefits or an inheritance on behalf of the minor (if the agency or company giving the benefits requires guardianship of the minor’s estate).

•  The minor is entitled to receive benefits, and the agency giving them requires guardianship of the minor’s estate.

•  The minor is entitled to receive property for which title is required (such as real estate or a vehicle).

•  You will be managing major assets or property for a minor.

You will need a guardianship of both the minor’s person and estate if:

•  You were named guardian of a minor’s person and estate in a deceased person’s will, substantial assets were left to the minor, and you are willing to accept the responsibility of being a guardian.

•  Any of the circumstances listed above require a guardianship of the person and any of the above requirements also require a guardianship of the estate.

 

Example 2:

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.)

Example 3:

Alice is four years old when her father dies, leaving her as the beneficiary of his life insurance policy. The insurance company refuses to turn the benefits over to her mother, with whom Alice continues to live, because the minor, not the mother, was named as the beneficiary. Alice’s mother obtains a guardianship of her daughter’s estate only—as a parent she is already legally responsible for Alice’s physical well-being.(This problem could have been avoided if Alice’s father had filled out the insurance policy differently or if Alice’s parents had prepared proper estate planning documents before his death.)

Example 4:

Bob’s parents both die suddenly when he is eight, leaving a request in their will that Bob’s maternal grandparents be appointed guardians of both his person and estate. They also leave Bob all their property, which includes equity in a house, securities, a car, and other personal property. The grandparents obtain guardianship of both Bob’s person and estate so they can manage his finances and have legal custody of him. It also enables them to add Bob to their health insurance policy and to avoid hassles when they travel out of the country. (See the discussion of traveling with a minor in Chapter 2.)

Is a Guardianship Really Necessary?

Before you jump to the conclusion that a guard­ianship is a must for your situation, read this section carefully. Many times, formal guardian­ships are necessary, but in other situations, there are alternatives.

Do You Need a Guardianship of a Minor’s Person?

It is common for an agency “official” to insist that a guardianship of a minor’s person is needed. However, it’s quite possible that a signed authorization form will do just fine. If someone says you must obtain a guardianship of a minor’s person, consider these three rules:

Rule 1. If the minor will be in danger unless you get a legal guardianship, take immediate action to protect the minor. For example, a parent who previously neglected a child might threaten to remove that child from your care and put the child in a dangerous situation.

 

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Rule 2. If you plan to take care of a minor for an extended (perhaps indefinite) time, it makes good sense to get a guardianship of the minor’s person—even if you are not absolutely required to do so.

Rule 3. If you were named guardian of a minor’s person in his deceased parent’s will, the minor has no surviving parent, and you plan to take care of him, you will need to obtain a formal legal guardianship.

You probably won’t need a guardianship of the minor’s person if:

• You only plan to take care of a minor for a short time—up to three months.

• You live in a community where you are well known and there is general support for informal solutions to problems, instead of official court-ordered resolutions.

• You don’t anticipate having contact with agencies and institutions other than schools on behalf of the minor. For example, you might temporarily be caring for a minor who is already enrolled in school, has a doctor, is covered by medical insurance, and whose parents are sending money to support their child.

Read Chapter 2 carefully before proceeding with a legal guardianship. Chapter 2 discusses alternatives to getting a legal guardianship of a minor’s person.

Do You Need a Guardianship of a Minor’s Estate?

A guardianship of a minor’s estate involves a lot of extra work for the guardian, such as having property appraised, maintaining financial records, and preparing periodic accountings for the court. Unfortunately, if a guardianship of a minor’s estate is required—for example, by an insurance company, court, or a deceased person’s will—there probably isn’t a way around it.

Just to make sure that you really need a guard­ianship of a minor’s estate, consider these rules:

Rule 1. A parent can receive money or property on behalf of his child as long as the child’s assets will not exceed $5,000.

To receive the assets, the parent must sign a document swearing that the minor’s total estate does not exceed $5,000—including the money or property that is to be received. Once the parent provides this document to the person delivering the money or property, the funds can be released to be held in trust until the minor reaches age 18 (PC § 3401). This book does not tell you how to handle this procedure.

Rule 2. An adult can transfer money or property to a minor without court approval using the Uniform Transfers to Minors Act, as long as the value of the minor’s property is less than $10,000 (PC §§ 3900–3925).

A simple document can be prepared and signed to transfer the property. We do not cover that procedure in this book.

Rule 3. If the minor is in the position of acquiring substantial assets not covered in Rule 1 or Rule 2 above, you will need a legal guardianship of the minor’s estate.If the minor’s assets consist solely of money and the amount is under $20,000, the court has discretion to terminate the guardianship of the estate with specific conditions about how the money is to be held, such as a blocked account (PC § 3412). Note that “substantial assets” here does not include public assistance benefits or other relatively small sums of money—in these instances only a guardianship of a minor’s person is required.

Using Estate Planning to Avoid Guardianship of a Minor’s Estate

Death is a difficult topic in our culture. Many people shut down when the subject of death is raised, preferring the head-in-the-sand technique of avoidance to facing the reality of their own or others’ mortality. We bring up the subject because many times, guardianships of a minor’s estate could be avoided or simplified with just a little bit of advance planning. “Estate planning” is the term for designating to whom and how property is to be transferred before and after death. Estate planning covers many methods of dealing with assets, including wills, trusts, and gifts. Estate planning helps eliminate the guesswork in distributing property, allows things to be much simpler and less stressful for the survivors, and may also allow for huge savings in taxes and legal costs. There are a variety of estate planning devices that allow an adult to leave assets to minors with little or no use of the probate courts.

 

RESOURCE

When a Minor’s Parents Need Guardianship of Their Child’s Estate

It may seem strange that parents would need to obtain a guardianship of their own child’s estate when their child lives with them. This situation usually arises when a minor inherits money or other property without adequate estate planning. Unfortunately, in these instances, the parents generally don’t have any alternative to going to court to obtain a legal guardianship of their child’s estate.

Example 1:

Karen White and Jeff Black are not married, and they live together with their three young children. Karen dies suddenly, leaving the proceeds of her life insurance policy and all of her assets—which are substantial—to their three children. Jeff has not worked for many years, because he has been staying home taking care of the children, and he has very few assets of his own. Jeff goes to court and becomes guardian of his children’s estates, so that he may manage the life insurance proceeds and assets for them. He does not need to obtain guardianship of their persons, since he is a parent and they already live with him.

Jeff needs some job training to go back to work, but he wants to spend a few months at home before starting the training, taking care of the kids following their mother’s death. With the help of a lawyer, Jeff makes a motion asking for use of the estate for the support of his children. The judge allows Jeff to use funds from his children’s estates to fully support his three children for six months, when he plans to return to the work force. After the six months, Jeff will continue to manage the assets of his children’s estates, but he will financially support his children.

Example 2:

The Stones live next door to an elderly widower who is extremely fond of their small daughter. When the widower dies, he leaves his house to five-year-old Alice Stone. Alice’s parents, Jill and Mike, go to court and obtain guardianship of their daughter’s estate so that the asset can be transferred to Alice (via the guardianship of Alice’s estate). Both Jill and Mike work full-time and have no problem supporting their daughter. They plan to sell the house Alice inherited and invest the money for Alice’s use when she reaches age 18. If Jill and Mike were to make a motion in court asking to use the money for the support of their child, this request would not be granted because they are already able to support her financially.

Should You Be the Guardian?

A guardianship is an ongoing legal responsi­bility that can last until the minor reaches age 18. You should thoroughly consider all the consequences of being a guardian before you decide to become one. Chapters 10 and 11 give more details about the guardian’s responsibilities, but here is the gist of it.

As guardian of a minor’s person, you basically assume the role of the minor’s parent. This is a responsibility that is never easy, even in the best of times. Often the guardian will be stepping into a family situation that is already laden with problems—perhaps taking on a child who is difficult to handle. While being a guardian can be rewarding, it can be a real source of stress. It can also be a time-consuming job.

As guardian of a minor’s estate, you must commit yourself to the time and planning necessary to handle the minor’s assets wisely. You must have a noncash estate appraised by a probate referee, file documents with the court itemizing the estate and its appraised value, and complete periodic written financial account­ings for the court. You must be “bondable”—able to get surety insurance. You must have good credit and assets of your own in order to qualify for this type of insurance. You must also go to court to get permission for any but the most conservative financial transactions.

Do You Want to Be the Guardian?

An obvious but extremely important question to ask yourself before you take any steps to establish a guardianship is: Do you want to be the guardian?

Of course, your feelings about your potential role as a guardian relate to the circumstances. In a real emergency where everyone involved agrees, such as when a close relative dies or can’t take care of her children, it may be easy to agree to be a guardian. On the other hand, if there are bad feelings between family members or the minor has not been cared for properly (for example, perhaps the child has been abandoned or abused) and is hostile, uncommunicative, or emotionally disturbed, you may think twice before going ahead. And you will definitely want to do some additional soul-searching if someone else (perhaps even a natural parent) seems determined to go to court to challenge your petition to be named guardian.

It is sensible to consider your options carefully before going through with the guardianship procedure.

Are You an Appropriate Choice for Guardian of a Minor’s Person?

There are no hard and fast rules on who is appropriate to be a guardian. It is up to the discretion of the judge or court commissioner, who will weigh many factors in making a decision. While there is an order of preference for appointing a guardian of a minor’s person (see the box below), this system is very flexible, especially if neither parent is responsible for caring for the minor—a common situation in which a guardianship is needed. Usually, there’s no debate about who will be the guardian, as there is usually only one person willing and able to assume the role.

The most important consideration in naming a guardian is what is in the child’s interest. A judge will consider the love and emotional ties between you and the minor and your ability to “parent” the minor. The judge will also look at practical considerations such as your health and your ability to provide the minor with food, shelter, clothing, and medical care. Any established school, community, and religious ties also will be considered. If you have already taken care of the child for some time, this should be a factor in your favor. Finally, the judge might consider your ability and desire to foster healthy communication and contact between the minor and the minor’s parent, if that is relevant. If the guardianship is not contested, the judge only needs to agree that it is “necessary and convenient” in order to grant it. (If it’s contested, the judge will look at “the best interests of the child”—a tougher standard.)

 

Deciding Whether You Want to Be a Guardian

•  Do you want the ongoing responsibilities of a legal guardianship—including potential liability for the minor’s actions? Chapter 11 gives a thorough explanation of these responsibilities. If you don’t want these obligations, look into some of the alternatives to guardianships. (Informal alternatives to guardianship of a minor’s person are discussed in Chapter 2.)

•  For guardianships of the estate, are you willing to continuously manage the minor’s assets, provide the court with a required inventory and periodic accountings, and return to court if you need permission to handle certain financial matters? (See Chapter 10 for a discussion of the ongoing responsibilities of a guardianship of a minor’s estate.)

•  What kind of personal relationship do you have with the minor? Given the nature of this relationship, do you want to act as the legal parent of the minor for the duration of the guardianship?

•  Would the guardianship adversely affect you or your family because of your own children, health situation, job, age, or other factors?

•  Can you handle the work involved? Do you have the time and energy to take care of the minor and any assets in the estate? Will you be able to make the annual reports to the court?

•  What is the financial situation? If the child will receive income from Social Security, welfare, a parent, or the estate of a deceased parent, is this adequate to allow you to provide a decent level of support? If not, are you willing and able to spend some of your own money on the minor?

•  Do you anticipate problems with the minor’s relatives—including a parent who “abandoned” a minor, and who might suddenly reappear and contest the guardianship? This is rare, but it can happen. If you expect objections, be aware that issues concerning your own background could be used in an attempt to disqualify you from obtaining a guardianship, or later may even be used to have you removed as guardian.

•  What kind of relationship do you have with the minor’s parents? Are they likely to support the guardianship, or might they be hostile, antagonistic, and interfering?

 

A judge typically will consider the minor’s wishes (especially for older children), the parents’ and other close relatives’ wishes (if they are expressed), the proposed guardian’s ability and desire to take care of the child, whether the child will be harmed if a guardianship isn’t granted, and possibly other alternatives to a guardianship such as foster care placement through the county. While many judges will try to keep families together as much as possible by appointing one guardian for siblings, this is not required by law.

Order of Preference for Appointing Guardian of the Person

Judges have flexibility in choosing who to appoint as guardian. There are, however, some guidelines provided by law (FC §§ 3040, 3041). The law recognizes that other factors enter into every decision, but gives preference:

1. to one or both parents (either sole or joint custody); then

2. to the person with whom the minor has been living in a wholesome and stable environment; then

3. to any person determined suitable and able to provide adequate and proper care and guidance for the minor (PC § 1514).

 

Are You an Appropriate Choice for Guardian of a Minor’s Estate?

In deciding whether to appoint you guardian of a minor’s estate, a judge should consider your ability to manage and preserve the estate’s assets, as well as your concern for the minor. A judge may consider your own financial situation and your ability to manage or hire people to handle relatively large sums of money. The court may also require that you be bonded by a surety insurance company. (See Chapter 10 for more details on the ongoing responsibilities of guardianship of a minor’s estate.)

Are There Reasons That You Shouldn’t Be Named Guardian?

A judge decides whether to grant a guardian­ship on the basis of what will best meet the minor’s needs. This is sensible; the judge must focus on what is best for the child, not what’s best for you. Obviously, however, your lifestyle and your background may well influence a decision about what is best for the minor.

The proposed guardian and minor often are interviewed by a court investigator who then makes a report to the judge. In some counties, the proposed guardian must be finger­printed, and the investigator will check into whether the proposed guardian has a criminal record. In addition, a routine screening of whether the pro­posed guardian of a minor’s person has ever been reported for child abuse or neglect is always made. Chapter 8 has more about guardianship investigations.

There are several obvious reasons why you might not be appointed guardian, or why you later could be removed as guardian. Bear in mind that conduct that falls in one or more of these categories won’t automat­ically disqualify you—it’s up to the judge. But a court might consider you to be an improper guardian in any of the following circumstances:

• If you have been charged with neglecting or abus­ing a minor, the court would consider you an inappropriate choice for guardianship of a minor’s person.

• If you have been convicted of a felony, it could prevent you from being named guardian, or it could be grounds for removal (PC § 2650).

• If you have had other run-ins with the law, your appro­priateness as a guardian would probably depend on the crime, how long ago it was committed, and what your lifestyle is like now. For example, if you were “wild” when you were 19, but now at 50 you’ve been consistently employed for decades, raised your family, own your home, and need to take care of your grandchild, the court won’t be interested in the wild oats of your youth.

• For guardianships of a minor’s estate, if information about your finances or ability to manage money (such as bankruptcy or financial problems) indi­cates that you would be an inappropriate choice, the court may question you, put restrictions on your powers, or reject you ­outright.

• If there is any well-known undesirable information about your personal life—for example, alcohol, drug, or gambling problems—these could influence the judge’s decision.

If you are in any of these situations, you may be better off not petitioning to be the minor’s guardian, especially if anyone is likely to challenge your qualifi­cations in court. However, if the minor has no one to provide proper care, you still might opt to petition for the guardianship, and argue that the negative factor has been eliminated or isn’t important.

 

It’s All Relative

Here are some fairly common questions that come up in families about guardianships.

Q: I don’t think my sister is a good parent, so can I become her child’s guardian?

A:  Maybe. The court won’t grant a guardianship just because you don’t approve of your sister’s parenting. Instead, you’d have to prove that it would harm the child to stay with your sister. If the child isn’t being abused or neglected, and your sister is caring for the child, your best bet is probably to try first to work it out within the family. But if the child is at risk because of abuse or neglect, you can notify your local social services agency, and petition for guardianship. If your sister would contest the guardianship, you’ll need a lawyer’s help.

Q: I don’t want my unreliable ex-husband to have custody of our small child if something happens to me. Can I choose someone else to be my daughter’s guardian?

A:  You may execute a will that names someone other than your ex-husband as guardian of your child when you die, but there’s no guarantee that the court will follow your wishes. If your ex-husband can parent, and if he objects to whomever you named being appointed guardian, the court probably won’t approve your nomination, but will let your husband take the child. If your ex-husband is

     abusive or neglectful, though, the court might consider appointing someone else. If that’s the case, you can note in your will, or in a letter that you attach, the reasons why your ex having custody would be detrimental to your child.

        In the event you are terminally ill, you can ask a court to appoint you and someone else jointly as guardians. After your death, the surviving joint guardian will take sole custody of the child. But before approving a joint guardianship like this, the court must find that giving custody to the other parent would be detrimental to the child.

Q: My ex-husband died, leaving all of his money to his children, but he nominated his obnoxious brother as guardian. Can I be named guardian of the estate instead?

A:  You could petition the court to be named guardian of the estate. However, the person leaving the money has a right to nominate the guardian of the estate, and the court is obligated to follow that nomination unless the person is unwilling to serve, or isn’t an appropriate choice to be guardian of the estate—for example, if he has fraud convictions, bankruptcies, or a poor credit history.

 

Do You Need an Attorney or Other Legal Professional to Help You Petition for Guardianship?

If the minor’s parents can’t care for their child, you have the approval of the minor’s close relatives, you are the natural person to take over, and you have the patience to handle the court process, there’s normally no reason why you can’t do the guardianship petition process on your own, without a lawyer’s help. If you need some help with the forms, you might find a document preparer to assist you for a much lower fee than an attorney would charge. Document preparers can’t give legal advice, but you can save the money you would have spent for a lawyer for the immediate needs of the child. (See Chapter 13 for information on document preparers.) Many counties have assistance at the court, called Guardianship Clinics, if you are seeking only a guardianship of the minor’s person. These clinics are usually run by volunteer members of the local county bar association. Ask your court clerk whether your county offers help like this.

What if you’re not sure whether you’ll have the support of the minor’s relatives, or the natural parents are not completely out of the picture and might contest the guardianship? You may still choose to start the process of obtaining a guardianship on your own. If you run into problems later, you can involve a lawyer then.

If you anticipate problems from the start, such as relatives contesting the guardianship or a parent who you think is unfit insisting on trying to keep or get custody, you will probably want to consult a lawyer first. Then, if someone takes legal action that requires an immediate response, you will not need to hunt for a lawyer in the midst of a crisis.

Even if you do use an attorney for the entire process, this book will help you understand the guardianship procedure and help you make sure that the attorney is doing the job right.

 

tip

Special Concerns of Stepparents and Coparents
If both of the minor’s parents are living, it may not make sense for you to file for a legal guardianship. Even if you are living with and parenting the minor as a stepparent or coparent (in other words, you are parenting with one of the minor’s parents but you are not related to the minor),filing guardianship papers could start a custody battle with the other parent. You may decide not to put everyone involved through such a court battle, unless it would be detrimental to the minor for the other parent to have legal custody.
	resource • For lesbian and gay couples, an impor­tant source of information is A Legal Guide for Lesbian & Gay Couples, by Denis Clifford, Frederick Hertz, and Emily Doskow (Nolo). •  For unmarried couples, legal and prac­tical information is available in Living Together: A Legal Guide for Unmarried Couples, by Ralph Warner, Toni Ihara, and Frederick Hertz (Nolo).

 

If you are seeking guardianship of a minor’s estate or person and estate, you will probably need the help of a legal professional after you are appointed guardian. (Chapter 13 contains information and tips on how to find and hire attorneys and other legal professionals.)

Using This Book

Here are some tips about how to use this book effectively.

• If you want to avoid going to court for a guardian­ship of a minor’s person, turn to Chapter 2. There you’ll find informal alternatives to a legal court-ordered guard­ian­ship and suggestions for how to use these informal guardianship authorization documents.

• If you will be seeking public benefits for the minor, or if you will be dealing with agencies and institutions (such as schools, medical facilities, and insurers), read “Dealing With Agencies and Institutions” in Chapter 2. The information is useful for those who are not seeking a legal guardianship, and may also be helpful for those who want a legal guardianship.

• If you have decided to obtain a legal guard­ianship, read Chapter 3 for an over­view of how to prepare and file your papers with a California court. Then read and follow the instructions in Chapters 4, 5, and 6. If you will be seeking guardianship of a minor’s estate, you also will be directed to Chapter 10 to help you understand and prepare papers needed to initiate a guardianship of a minor’s estate.

• If you need a legal guardianship of a minor’s per­son right away, read and follow the instructions in Chapter 7 in addition to following the instructions for a regular guardianship (Chapters 4, 5, and 6).

• After filing and having your guardianship papers served, read Chapter 8, which gives valuable infor­mation about a court investigation that may take place. Then, before the court-appointed hearing date, read Chapter 9 and talk to the minor about the hearing.

• Once you’ve become a guardian, Chapter 11 gives you an overview of your responsi­bilities. Guardians of the estate also need to read Chapter 10.

• If a guardianship is no longer needed, you’ll find information about how to end it in Chapter 12.

• If you think you need an attorney, you’ll find information on how to find a lawyer or legal document preparer, and on how to do some of your own legal research, in Chapter 13.

The Vocabulary of Guardianships

We’ll define important terms as we go. And Appendix A, at the back of this book, provides a glossary of terms you are likely to come across in the guardianship process.

Guardianship Forms

Appendixes B and C, at the back of this book, contain the forms you’ll need to obtain a legal guardianship or to handle alternatives to a legal guardianship. The entire book explains the step-by-step details of how to fill out and use all of the forms.  l