Kara Sears
Guardianship in California is the process by which a court appoints someone other than a child's parent to take care of the child. This can include having custody of the child, managing the child's property, or both. Guardianship is generally for minors under 18, but there are exceptions for persons under 21 seeking special immigrant juvenile status. A guardianship can be terminated if the child turns 18, is adopted, marries, enters military service, or passes away before turning 18. The court can also end a guardianship if it is in the child's best interests. To establish a guardianship, several forms and fees are required, and the child's relatives must be notified. While guardians have many of the same responsibilities as parents, the parents of the child retain their parental rights and may request reasonable contact or even full custody of the child.
| Characteristics | Values |
|---|---|
| Guardianship of the estate | Costs $450 to start |
| Permission to move the child to another state or country | Required |
| Permission for the child to apply for a driver's license | Required |
| Permission for the child to get married | Required |
| Permission for the child to enlist in the military | Required |
| Permission for surgery if the child is 14 years or older | Required |
| Custody of the child | Requires parents' consent |
| Medical release for emergencies | Required |
| Welfare | Can be received by the guardian if related to the child |
| Foster care payments | Can be received by the guardian |
| Kin-GAP | Can be received by the guardian if related to the child |
| SSI | Can be received by the child if they have a disability |
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What You'll Learn
Guardianship of the estate
A guardianship of the estate is needed if a child has a lot of money, income, or property. For example, if the child inherited a lot of money from a deceased parent. Guardianship of the estate is not required if the child receives social security benefits or TANF/CalWORKs.
Guardianships of the estate have very strict rules about how the money is handled (called fiduciary duties). It is recommended to seek help from a lawyer when dealing with this type of guardianship. A guardian of the estate manages a child's income, money, or other property until the child turns 18. In most cases, the surviving parent is appointed as the guardian of the child's estate. However, in some cases, the court may appoint two different people as guardians of the person and of the estate.
To establish a guardianship of the estate, you will need to fill out specific forms, which can be downloaded from the court's online forms webpage. The process begins by filing the papers with the court, after which a date will be set for the court hearing. Copies of the papers and details of the hearing must be delivered to the child's parents and other family members. You can request the parents' and other relatives' consent to becoming a guardian, but they can still change their minds and object during the hearing. Serving court papers is the official way to notify someone that a court case has been started.
The fee to start a guardianship of the estate case is $450, although the exact amount should be checked with the court. If the child cannot afford the fee, a fee waiver can be applied for, based on the child's income. Before the judge makes a decision, the court will appoint someone to investigate and report on why the guardianship is necessary.
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Parental rights
In California, guardianship is the process by which a court appoints someone other than a child's parent to take care of the child. This can include custody of the child, managing the child's property or estate, or both. While guardianship transfers custody rights and many parental responsibilities to the guardian, it does not completely terminate parental rights. Parents may still have visitation rights and the potential to regain custody if circumstances change.
The parents' rights to child custody are suspended, not terminated, as long as a guardian is appointed for a minor. Parents may ask for reasonable contact with their child, and the court will consider what is in the child's best interest when deciding whether to order visitation or reinstate full custody to the parent. The parent retains the duty to financially support their child.
A guardian has the legal authority to care for and manage the affairs of a child, and they have the same legal rights and responsibilities as a parent. This includes caring for the child's overall health, 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. A guardian must also provide the child with housing, food, and clothing, and is responsible for the child's safety and protection.
Guardianship of the estate differs from guardianship of the person. Guardianship of the estate 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 their money and property.
Temporary guardianship may be needed in an emergency, such as when immediate medical treatment for the child is required or when both parents are dead, incarcerated, incapacitated, a minor, or otherwise unable to care for the child. In such cases, the person requesting to be appointed as a temporary guardian must demonstrate "good cause" to the court and also file for a general guardianship at the same time.
It is important to note that anyone who disagrees with a guardianship has the right to voice their concerns through formal objections. If there are objections after guardianship is granted, interested parties can ask the court to remove the guardian by showing valid legal reasons for the change.
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Consent and control
Consent plays a crucial role in the establishment of guardianship. While it is not always necessary to have the consent of the child's parents, it is beneficial to secure their consent through a written agreement. This agreement outlines the guardian's “custody” of the child and can include a medical release for emergencies. However, it's important to note that parents can revoke this agreement at any time. Additionally, the court may appoint a guardian, and in such cases, the court stays involved and supervises the relationship.
The prospective guardian's commitment to caring permanently for the child is also considered. This includes assessing the duration and character of the relationship between the prospective guardian and the child, as well as the degree of attachment. The court may also consider the child's statement and preferences, provided the child is over 12 years old and capable of providing a meaningful response.
Guardianship of the estate is a specific type of guardianship that focuses on managing a child's income, finances, or property until they turn 18. This type of guardianship has strict rules, including fiduciary duties, and often requires the assistance of a lawyer. The guardian owes a fiduciary duty to protect the child's estate and must maintain complete and accurate financial records, filing financial reports with the court.
In terms of control, a guardian has the right to make legal decisions on behalf of the child and is responsible for their overall care and protection. This includes providing housing, food, and clothing, and ensuring the child's safety. The guardian also has the authority to consent to medical treatment for the child, although there are specific requirements for surgeries involving children aged 14 or older.
It's important to note that guardianship is different from adoption. In guardianship, the parents' rights to child custody are temporarily suspended, and they may regain custody in the future if the court decides it is in the child's best interest. On the other hand, adoption permanently severs the birth parents' rights, and the legal relationship between the child and the adopting parents is the same as that of a birth family.
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Temporary guardianship
The child's biological parents' rights are suspended while the guardianship is in place, but they are not terminated. This is different from adoption, where the biological parents' rights are terminated and transferred to the adopting parents. Since the biological parents' rights are still in place in a guardianship, these rights can be transferred back to them at the end of the temporary guardianship if it is appropriate to do so.
There are several options for establishing temporary guardianship:
- Power of Attorney: This is not a court form, but a valid power of attorney can be established with a form that can be found online. This option requires parental consent and willingness to uphold the guardianship. However, it is important to note that parents can cancel these authorizations at any time, and service providers may not always recognize this form of guardianship.
- Caregiver's Authorization Affidavit: This form allows a caregiver to enroll the child in school and consent to medical care related to school. If the caregiver is the child's relative, they can also make medical care decisions outside of the school context. This option does not require parental consent, but parents can cancel it at any time.
- Joint Guardianship: This form of temporary guardianship is typically used when a parent has a significant medical condition and needs another adult to help care for their child. This arrangement allows parents to retain their parental rights while sharing parental responsibility with another nominated adult. Terminally ill parents may use joint guardianship to establish future custody arrangements for their children in the event of their death. Joint guardianship is only available in California and Connecticut and requires parental consent.
- Court-appointed temporary guardianship: While the above options provide a way to establish temporary guardianship, they provide less stability than a court-appointed temporary guardian. To establish a court-appointed temporary guardianship, you must file a Petition for Appointment of Temporary Guardian and serve court papers to notify the necessary parties. At the first hearing, a judge will decide whether to appoint you as a temporary guardian for the child. If appointed, it will only last until the next court date, at which point an investigator will be appointed to determine if the child needs a guardian.
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Duties and responsibilities
In California, a guardian of a child has the same legal rights and responsibilities as a parent. This includes caring for the child's overall health, including medical and dental treatment, and mental health services, if needed. A guardian must also provide the child with housing, food, and clothing, and is responsible for the child's safety and protection.
A guardian is responsible for making legal decisions on behalf of the child, such as giving permission for the child to apply for a driver's license, enlist in the military, or get married. The guardian is also responsible for any harm or damages the child may cause, whether intentional or negligent.
In the case of a guardianship of the estate, the guardian owes a fiduciary duty to the child and must follow the applicable laws to protect the child's income, finances, or other property until the child turns 18. This includes maintaining complete and accurate financial records and filing financial reports with the court.
It is important to note that a guardianship is different from an adoption. In a guardianship, the parents' rights to child custody are taken away only for the duration of the guardianship. Once they are able to care for their child again, the parents can ask a judge to end the guardianship and regain custody.
To establish a guardianship in California, there are certain procedures that must be followed. This includes filing the appropriate legal paperwork, such as a Petition for Appointment of Temporary Guardian, and paying the associated fees. The prospective guardian may also need to undergo an assessment that includes factors such as the duration and character of the relationship with the child and their commitment to caring permanently for the child. It is recommended that individuals seeking to become legal guardians consult with an attorney to understand the specific duties and responsibilities involved.
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Frequently asked questions
A guardianship is when an adult, who is not a child's parent, is legally responsible for the child's care because the child's parent is unable to do so. The guardian must provide the child with housing, food, and clothing, and is responsible for the child's safety and protection.
Guardianships in California 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.
To become a guardian in California, you must file a petition for guardianship with the court and pay a fee. The court will then appoint someone to investigate why the guardianship is necessary and write a report for the judge. The judge will make a decision based on the best interests of the child.
A guardian of a child has the same legal rights and responsibilities as a parent. This includes caring for the child's overall health, including medical, dental, and mental health treatment, 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 caused by the child.
An illegal guardianship in California may involve a guardian who fails to uphold their duties and responsibilities, such as neglecting the child's health, education, or safety needs, or violating the child's rights. Additionally, a guardianship obtained through fraud or misrepresentation may be considered illegal.
