Guardianship: All You Need to Know

Guardianship: What Is It And How It Works

Guardianship is a legal relationship formed by the court when a child, minor, or an incompetent adult is under a custody of an institution or someone other than the parent. The appointment of a guardian may be through a declaration in a will or an appointment by the court.

Guardianship laws vary between each state in the US. In California, a guardian is needed in the event a minor’s (below 18 years of age in California) parents are no longer qualified or capable to make legal decisions for them whether they be incapacitated, incompetent, or deceased. 

In a nutshell, a guardian is the person appointed by the court or named in the will to make legal decisions on behalf of the minor or incompetent adult. 

One of the main functions of a guardian is to take care of the minor’s assets or commonly called estate. Generally the court appoints a guardian who has some ties to the minor. In some states, when the minor reaches an allowable age the minor can choose his/her guardian.

Guardianship itself, however, is not the be-all-end-all and the process can get rather complicated. This guide is to help you through understanding the different types of guardianship, how to establish them, and the requirements for legal guardians.

Types of Guardianship

There are three types of guardianship: temporary, permanent, and informal. 

The tasks and responsibilities of a guardian depend on what type of guardian he/she is. The most common decisions a guardian makes regardless of type are as follows: educational, medical, and financial. 

They are additionally usually responsible for the care and wellbeing of the minor. It is also their obligation to report guardianship status annually to the court.

Temporary Guardianship 

Temporary guardianship is when parents turn over the care of their minors/children to the custody of another adult for a specific period of time. 

This type of guardianship is usually applicable when the parents go on a planned business trip or have met with a situation making one or both temporarily incapable of taking care of their child.

In California, temporary guardianships are initiated by filing a court petition. Anyone with ties to a minor can file a petition. A judge will decide whether or not a minor needs a temporary guardianship and if the particular person qualifies for the position of the minor’s guardian. 

A typical petition should include the minor’s name, the parents’ or the current guardian’s, the reason for the petition, and a suggested guardian name. A temporary guardianship has an expiration date and can only be expanded by the court’s decision.

Permanent Guardianship

Permanent guardianship is a type of guardianship in which the guardian becomes a permanent family for the child. 

Permanent guardianship does not require parental rights to be terminated. Generally, courts prefer to grant temporary guardianship and keep the child with the parents. However, if it is in the best interests of the child, the guardianship can become permanent. 

In California proceedings for permanent guardianship, the court gives primary consideration to the physical, mental, and emotional needs and safety of the child.

An agency or institution cannot be a permanent guardian. Instead, an adult may be considered as a permanent guardian by the court. 

California court may take into account the child’s preferences or appoint a person nominated by the child if he/she is above 12 years old. The court may also consider the child’s objection to the appointment of the permanent guardian.

Informal Guardianship

Informal guardianship is the right informally given to a relative or a friend of the family by the parents of a child. 

Informal guardianship authorizes the guardian to make medical or educational decisions about the child’s life. In such cases, the parents of the child sign a letter of Guardianship Authorization that will give a relative or a friend the right to take care of the child while they are unable to do so.

How To Establish A Legal Guardianship For A Minor

In order to set up a legal guardianship in the state of California, a person must file a guardianship case in the county in which the child lives. The following forms must be completed when filing a petition for guardianship:

  1. Petition for appointment of guardian of minor

  2. Required attachments to petition (this must be custom prepared)

  3. Guardianship petition - child information attachment

  4. Notice of hearing - guardianship or conservatorship

  5. Consent of proposed guardian, nomination of guardian, consent to appointment of guardian, and waiver of notice

  6. Duties of guardian

  7. Letters of guardianship

  8. Declaration under uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

  9. Confidential guardian screening form

  10. Any other forms your local court requires 
     

How To Establish Temporary Guardianship For A Minor

To establish temporary guardianship of a minor, the following forms must be completed and submitted to the court clerk at the same time as the Petition for legal guardianship

  1. Petition for Appointment of Temporary Guardian of the Person (Form GC-110(P)) if you are asking for guardianship of the person only; or petition for appointment of Temporary Guardian (Form GC-110) if you are also asking guardianship of the child’s estate

  2. Required attachments to petition

  3. Order appointing temporary guardian (Form GC-140)

  4. Letters of temporary guardianship (Form GC-150)

  5. Any other forms your local court requires 

For Help With Your Guardianship Case, Call Andrea Aston

Without legal assistance, the process of filing for guardianship is challenging and time-consuming. 

Gaining guardianship of minors involves a lot of formal legal documentation and complicated filing procedures. The filing process usually comprises filing a petition, attending a hearing, filing a court order and requesting a letter of guardianship. 

With years of experience in legal guardianship cases, Andrea Aston has the knowledge and expertise to guide you through every step of the process. Call (760) 758-1565 or email aaston@trustandestatelawyer.net to set up a consultation for your trust and estate planning needs today.
 

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Requirements To Be A Legal Guardian Of A Minor

A court-appointed legal guardian of a minor must be qualified to serve in that capacity. The legal guardian of the minor must be at least 18-years old and cannot have been convicted of a felony or misdemeanor. 

At times, the court will consider the minor’s wishes on whom he/she would like to have as his/her legal guardian. The court may review a durable power of attorney or will decide who has been designated as the minor’s legal guardian. 
 

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Andrea Aston

Trust and Estate Planning Attorney

760-758-1565

 

aaston@trustandestatelawyer.net

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