Guardianship of a Person
Guardianships of Children in the Probate Court
The probate court may appoint a guardian of the person for a child when no parent is available to meet the needs of the child because of the parents' death, incapacity, abandonment, military obligations, or other reasons.
What is Guardianship?
Guardianship is a court process by which a person other than a parent is given custody of a child or authority over a child's property. Appointment as guardian requires the filing of a petition and approval by the court. This web site will provide you with some basic information about guardianships. If the court establishes a probate guardianship, the guardianship may be:
- A guardianship of the person of the child (custody)
- A guardianship of the child's "estate" (property)
- A guardianship of both the child's person and estate
If the court appoints you as a guardian for a child, you will assume important duties and obligations. You will become responsible to the court. It is essential that you clearly understand your duties and responsibilities as guardian. If you have any questions, you should consult with an attorney who is qualified to advise you in these matters.
What is a Legal Guardian?
A legal guardian is an adult to whom the court has given authority and responsibility to provide care for a child, or to manage the child's assets, or both.
Who May Be a Legal Guardian?
Relatives, friends of the family, or other interested persons may be considered as potential legal guardians.
Before You File the Petition
Before you file a petition for guardianship, you should consider the following:
- Is a guardianship really necessary?
- Have you considered the alternatives?
- Do the parents consent to the guardianship?
- Without parental consent, is there enough evidence for you to prove the need for a guardianship?
- Do you need legal advice or assistance?
Some Alternatives to Guardianship
Private agreements: You can make a private agreement with the child's parents to provide care for the child. A written agreement can be made showing that you have "custody" of the child with the parents' consent. Normally, it is also beneficial to secure a medical release for emergencies, especially if a parent is not readily available. NOTE: The parents may revoke this type of agreement at any time.
Caregiver's Authorization Affidavit: The California Family Code allows a person who is related to a child to fill out a Caregiver's Authorization Affidavit. The affidavit normally allows that person, as a caregiver, to enroll the child in school and secure medical treatment for the child.
You may read Family Code section 6550 for details about this law. The caregiver form may be available through private legal publications or from a private attorney. NOTE: The parents may revoke your authority or override your decision under this type of agreement at any time.
Other financial arrangements: The law allows parents to make other financial arrangements for property inherited by or given to their children. For instance, a blocked account and other protective measures can be used without the appointment of a guardian of the estate. Consultation with an attorney for these types of matters is highly recommended. NOTE: Some financial institutions, insurance companies, and courts require the appointment of a guardian of the estate before they will release funds on behalf of a minor.
The Process - Briefly
If you decide that a child needs a probate guardianship, the first step in the process of establishing guardianship is to fill out and file the petition and other required documents with the clerk of the court. Some counties have additional "local forms" that need to be filed along with the standard forms.
Any interested party, or the child if 12 years or older, may file the petition. Specific persons must be given notice of the petition, unless excused by the court, before the court can hear the case.
The court may order that an investigation be completed before it makes its decision. If this occurs, you, the child, and any other persons deemed essential will probably be contacted about the case. The investigator will give the court a report and make a recommendation on what should occur. At that stage, the case may go to trial. The court may grant the petition or may find that there are insufficient grounds to establish a guardianship.
There is a fee for filing a guardianship petition. In addition, you may be charged a fee for a guardianship investigation. If neither you nor the child's estate can afford to pay the fees, you may request that the court waive the fee requirement. The court clerk can provide you with a fee waiver form.
Roles and Responsibilities
The guardian of the person of a child has the care, custody, and control of the child. As guardian, you are responsible for providing for food, clothing, shelter, education, and all the medical and dental needs of the child. You must provide for the safety, protection, and physical and emotional growth of the child. Like a parent, you should maintain close contact with the child's school and physician.
As guardian of the person of the child, you have full legal and physical custody of the child and are responsible for all decisions relating to the child. The child's parents can no longer make decisions for the child while there is a guardianship. The parents' rights are suspended-not terminated-as long as a guardian is appointed for a minor. If you wish, you may ask the parents for their opinions about matters relating to the child.
As guardian of the person of the child, you are responsible for the child's education. You determine where the child should attend school. As the child's advocate within the school system, you should attend conferences and play an active role in the child's education.
As guardian, you have the right to determine where the child lives. The child normally will live with you, but when it is necessary, you are allowed to make other arrangements if they are in the best interest of the child. You should obtain court approval before placing the child back with his or her parents.
As guardian, you do not have the right to change the child's residence to a place outside California unless you first receive the court's permission. If the court grants permission, California law requires that you establish legal guardianship in the state where the child will be living. Individual states have different rules regarding guardianships. You should seek additional information about guardianships in the state where you want the child to live.
As guardian, you are responsible for meeting the medical needs of the child. In most cases, you have the authority to consent to the child's medical treatment. However, if the child is 14 years or older, surgery may not be performed on the child unless either (1) both the child and the guardian consent, or (2) a court order is obtained that specifically authorizes the surgery. This holds true except in emergencies.
A guardian may not place a child involuntarily in a mental health treatment facility under a probate guardianship. A mental health conservatorship proceeding is required for such an involuntary commitment. However, the guardian may secure counseling and other necessary mental health services for the child. A variety of counseling services is available to help children. As guardian, you are expected to secure necessary services, cooperate with counselors, and maintain regular contacts with the child's treatment providers.
There are agencies in each county that may be helpful in meeting the specific needs of children who come from conflicted, troubled, or deprived environments. If the child has special needs, you must strive to meet those needs or secure appropriate services. Some children may have physical or learning disabilities. Other children come from abusive homes or have been victims of abuse. Counseling and other services may be necessary to assist a child who has special needs or has had unpleasant life experiences. If you need assistance, you should check with the court or with your local child welfare services agency for a referral to agencies that can help you and the child.
Even when the child has a guardian, the parents are still obligated to support the child financially. The guardian may take action to obtain child support. You may contact the local child support agency in your county to collect support from a parent. The child may also be eligible for Temporary Aid for Needy Families, TANF, formerly known as AFDC; social security benefits; Veterans Administration benefits; Indian child welfare benefits; and other public or private funds.
The court may require that you allow visitation or contact between the child and his or her parents. The child's needs often require that the parent-child relationship be maintained, within reason. However, the court may place restrictions on the visits, such as the requirement of supervision. The court may also impose other conditions in the child's best interest.
Under most circumstances, it is best for you to have a working relationship with the parents, if possible. However, in every case, you must follow all orders of the court, including those that may restrict contacts and visitation.
As guardian of the person, you have the authority to consent to the minor's application for a driver's license. If you consent, you will become liable for any civil damages that may result if the minor causes an accident. The law requires that anyone signing the DMV application obtain insurance to cover the minor.
The guardian may consent to a minor's enlistment in the armed services. If the minor enters into active duty with the armed forces, the minor becomes emancipated under California law.
For the minor to marry, the guardian and the court must give permission. If the minor enters a valid marriage, the minor becomes emancipated under California law.
The court may place other conditions on the guardianship or additional duties upon you, as guardian. For example, the court may require the guardian to complete counseling or parenting classes, to obtain specific services for the child, or to follow a scheduled visitation plan between the child and the child's parents or relatives. As guardian, you must follow all court orders.
A guardianship of the person automatically ends when the child reaches the age of 18, is adopted, marries, is emancipated by court order, enters military service, or dies. If none of these events has occurred, the child, a parent, or the guardian may petition the court for termination of guardianship. But it must be shown that the guardianship is no longer necessary, or that termination of the guardianship is in the child's best interest.
A guardian must notify the court in writing of any change in the address of either the child or the guardian. This includes any changes that result from the child's leaving the guardian's home or returning to the parent's home. You must always obtain court permission before you move the child to another state or country.
Misconduct of the child: A guardian, like a parent, is liable for the harm and damages caused by the willful misconduct of a child. There are special rules concerning harm caused by the use of a firearm. If you are concerned about your possible liability, you should consult an attorney.