Guardianship is when a court orders someone other than the child’s parent to:
- Have custody of the child; or
- Manage the child’s property (called “estate”); or
The information in this section is about probate guardianships. These cases are brought by the person seeking to be appointed guardian or by someone else in the family asking the court to appoint a guardian. If custody of the minor was awarded to a non-parent through the juvenile dependency court, this section does NOT apply.
If Child Protective Services (CPS) is involved in your case, you probably have to go to the juvenile court to find out what you can do.
A probate guardianship of the person is set up because a child is living with an adult who is not the child’s parent, and the adult needs a court order to make decisions on behalf of the child. Generally, probate guardianships are for children under 18. In the case of immigrant youth who are seeking special immigrant juvenile status, the law allows a guardianship of the person to be requested (or extended) for a young person who is already 18 but still under 21.
A guardianship is not the same as an adoption. Here are some differences:
|In a Guardianship:||In an Adoption:|
Types of probate guardianship
There are 2 types of probate guardianship:
Guardianship of the person
In a guardianship of the person, the guardian has the same responsibilities to care for the child as a parent would. That means the guardian has full legal and physical custody of the child and can make all the decisions about the physical care of the child that a parent would make. A guardian can be anyone: relatives, friends of the family, or other people suitable to raise the child can ask to be legal guardians.
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
The guardian is also be responsible for supervision of the child and may be liable for any intentional damage the child may cause.
A guardianship of the person is sometimes needed when, no matter how much parents love their child, they are not able to parent.
Maybe 1 or both parents:
- Have a serious physical or mental illness;
- Are in the military and have to go overseas;
- Have to go to a rehab program for a while;
- Are going to jail for a while;
- Have a drug or alcohol abuse problem;
- Have a history of being abusive; or
- Cannot take care of their child for some other reason.
The court will look at what is in the best interest of the child to make sure the child is raised in a safe, stable, and loving environment. A legal guardian can care for a child when the parents are unable to.
Guardianship of the estate
A guardianship of the estate is set up to manage a child’s income, money, or other property until the child turns 18. A child may need a guardian of the estate if he or she 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 2 different people.
The guardian of the estate must:
- Manage the child’s money;
- Make smart investments; and
- Manage the child’s property carefully.
A guardianship of the estate is created to manage a child’s property.
It is needed when:
- The child owns or receives valuable property, like if a child inherited a house or a large amount of money.
A guardianship of the estate is not needed when:
- A child only owns inexpensive toys and clothing; or
- The child receives social security benefits or TANF/CalWorks (welfare).
If you are not sure if a guardianship of the estate is needed, talk to a lawyer.
IMPORTANT: If a guardianship of the estate is needed, it is best to use a lawyer to set it up, and to represent the guardian of the estate. This is because the fiduciary duty (this is the highest duty the law recognizes) owed by the guardian to the child requires that all the laws and rules be followed, and that the child’s assets (property) be protected. A lawyer can make sure that the guardian of the estate does everything correctly. The lawyer’s fees are paid from the estate and must be approved by the court so there is protection for the child.
from California Courts