While looking up the local rules for the Probate Department in the Superior Court in Santa Clara County for a case I had been asked to take over, I came across a section in their website that had a concise and informative description of Guardianships. I often get questions from parents regarding how their chosen caretakers for their children, in the event of the parents’ death, incapacity or incarceration (unfortunately), would obtain the authority to make decisions for their children. Some of the key points are explained very clearly so I thought I would share…
There are two kinds of Probate Guardianship:
- Guardianship of the Person
Guardianship of the person is set up because a child is living with an adult who is not a parent, and the adult needs the legal authority to make decisions on behalf of the child. In a Probate Guardianship of the Person, the guardian has full legal and physical custody of the child.
What does a guardian of the person do? The guardian generally has the same responsibilities as a parent. That means the guardian is responsible for the child’s care, including the child’s:
- Food, clothing and shelter
- Safety and protection
- Physical and emotional growth
- Medical and dental care
- Education and any special needs.
Guardianship of the Estate
What does a guardian of the estate do? A guardian of the estate manages a child’s income, money, or other property until the child turns 18. A child may need a guardian of the estate if s/he inherits money or assets.
- In most cases, the Court appoints the surviving parent to be the guardian of the child’s Estate.
- In some cases the same person can be the guardian of the person and of the estate.
- In other cases, the Court will appoint two different people.
WHAT SHOULD I THINK ABOUT BEFORE AGREEING TO ACT AS A GUARDIAN, AM I READY?
A. Do you want legal responsibility for the child?
You will have the same legal responsibilities as a parent, including liability for damages the child may cause. As guardian, you must also manage the child’s finances, keep careful records, give the Court reports and ask the Court permission to handle certain financial matters.
B. How will the guardianship affect you and your family?
You will be like the child’s parent. This may affect your relationship with other family members. Consider if your health, available time and energy make this a good decision for you.
C. Do you have enough money?
The child may get income from Social Security, public assistance, a parent or the estate of a deceased parent. If this is not enough, you may have to spend your own money to raise the child.
D. Will there be problems with the child’s relatives?
If the child’s parents are alive, will they support you as Guardian, or be hostile and interfering? Some parents may contest the Guardianship and/or the Court may say that they can have regular visitation.
E. Can I name a guardian for my children?
Yes. You can write a letter naming a guardian and place it with your important papers or write the name of the proposed guardian in your will.But if both parents are dead, the Court must appoint the guardian. The Court will try to appoint the person you nominate. But, the Court will also consider what is best for your child and will ask the child what s/he wants.
Sometimes a parent who is terminally ill can ask the Court to appoint a joint guardian. This can make the transition easier when the parent dies. It gives the sick parent the comfort of knowing their child will be safe with the guardian they chose. And when the parent dies, the joint guardian will have full custody of the child without another guardianship hearing.
PROS AND CONS
- Is guardianship always necessary?
No. In fact many adults who have physical custody of a child avoid becoming a legal guardian because:
- The caretaker believes the child’s parents will not consent to a legal Guardianship.
- Filing for a Guardianship would cause more problems among family members.
- The caretaker doesn’t want the Court to monitor his or her personal life.
- The caretaker will only act as guardian for a short period of time and the parents are willing to sign a form called a Caregiver’s Authorization Affidavit .
- Can I still act as the child’s caretaker without being the legal guardian?
Yes. In California, parents can sign a Guardianship Authorization Affidavit. This form gives a relative permission to make decisions about the child’s education and medical care, or a non-relative permission to make decisions about education and school-related medical care. The form says the child’s parents give you informal “custody” of the child.If you are a non-relative, it’s also a good idea to get a medical release from the parents. This will allow you to make medical decisions beyond school-related health care needsFor more information, read Family Code section 6550 .
- Will the Guardianship Authorization, Affidavit of Caregiver or a notarized letter from the parents allow me to meet all the child’s needs?Maybe not. Here’s why:
- Not all schools or medical facilities accept these forms.
- The parents can cancel the forms at any time.
- If the parents changed their minds and wanted the child back, it might not be safe for the child.
- It may be hard for you to get medical insurance for the child unless you are the legal guardian.
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