GUARDIANSHIPS OF CHILDREN IN THE PROBATE
COURT
This
web page provides basic information about probate guardianships
for children. It includes general information about court
procedures, the duties and responsibilities of probate
guardians, and other helpful material to assist you in
fulfilling the obligations of a guardian. (For information
about becoming a guardian of a dependent or ward of the
Juvenile Court, you should consult the separate pamphlet
on that subject.) Further information about probate guardianships
may be obtained from an attorney, the Probate Code, and
private publications and resources. You should also consult
the court or the court clerk’s office regarding
special procedures or rules in your county.
Form
Adopted for Mandatory Use Judicial Council of California
GC-205 [Rev. January 1, 2001]
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 pamphlet 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);
- Or
both.
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 Legal Guardians?
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 your local county clerk's office, 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.
GUARDIANSHIP
OF THE PERSON
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.
Fundamental 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.
Raising children is not always easy. You should become familiar with community
resources that can assist both you and the child. You may get help and information
from a support group for guardians.
Custody – 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.
Education – 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. For younger children,
you may want to consider enrolling the child in Head Start or other
similar programs. For older children, you should consider their future
educational needs such as college or a specialized school. You must
assist the child in obtaining services if the child has special educational
needs. You should help the child in setting and attaining his or
her educational goals.
Residence – 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.
Medical treatment – 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.
The law allows older and more mature children to consent to their own treatment
in certain situations, such as outpatient mental health treatment, medical
care related to pregnancy or sexually transmitted diseases, and drug and
alcohol treatment.
Community resources – 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 protective services agency for a referral
to agencies that can help you and the child.
Financial support – 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.
Visitation – 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.
Driver’s license – 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.
Enlistment in the armed services – 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.
Marriage – 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.
Change of address – 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.
Court visitors and status reports – Some counties
have a program which “court visitors” track and review guardianships.
If your county has such a program, you will be expected to cooperate with
all requests of the court visitor. Also, as guardian, you may be required
to fill out and file status reports. In all counties, you must cooperate
with the court and court investigators.
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 the use of a firearm.
If you are concerned about your possible liability, you should consult an
attorney.
Additional responsibilities – 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.
Termination of guardianship of the person – 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.
GUARDIANSHIP
OF THE ESTATE
If
the court appoints you as guardian of the child’s
estate, you will have additional duties and obligations.
The money and other assets of the child are called
the child’s “estate.” Appointment
as guardian of a child’s estate is a solemn matter.
It is taken very seriously by the court. The guardian
of the estate is required to manage the child’s
funds, collect and make an inventory of the assets,
keep accurate financial records, and regularly file
financial accountings with the court. The use of an
attorney for legal advice in managing the estate
is recommended.
Managing
the estate
Prudent
investments – As guardian of the estate,
you must manage the child’s assets with the
care of a prudent person dealing with someone else’s
property. This means that you must be cautious and
may not make speculative or risky investments.
Keeping estate assets separate – As guardian
of the estate, you must keep the money and property of the child’s
estate separate from everyone else’s, including your own.
When you open a bank account for the estate, the account name
must indicate that it is a guardianship account
and not your personal account.
You should use the child’s social security number when opening estate
accounts. You should never deposit estate funds in your personal account
or otherwise mix them with your own funds or anyone else’s funds, even
for brief periods. Securities in the estate must be held in a name that shows
that they are estate property and not your personal property.
Interest-bearing accounts and
other investments – Except
for checking accounts intended for
ordinary expenses, you should place
estate funds in interest-bearing accounts.
You may deposit estate funds in insured
accounts in federally insured financial
institutions, but you should not put
more than $100,000 in any single institution.
You should consult with an attorney
before making other kinds of investments.
Blocked accounts – A blocked
account is an account with a financial
institution in which money or securities
are placed. No person may withdraw
funds from a blocked account without
the court’s permission.
Depending on the amount and character of the child’s property, the
guardian may elect or the court may require that estate
assets be placed in a blocked account. As guardian of the estate, you must
follow the direction of the court and the procedures required to deposit
funds in this type of account. The use of a blocked account is a safeguard
and may save the estate the cost of a bond.
Other restrictions – As
guardian of the estate, you will have
other restrictions on your authority
to deal with estate assets. Without
prior court order of the court, you
may not pay fees to yourself or your
attorney. You may not make a gift of
estate assets to anyone. You may not
borrow money from the estate. You may
not use estate funds to purchase real
property without prior court order.
If you do not obtain the court’s permission to spend estate funds,
you may be compelled to reimburse the estate from your own personal funds
and may be removed as guardian. You should consult with an attorney concerning
the legal requirements relating to sales, leases, mortgages, and investment
of estate property.
If the child of whose estate you are the guardian has a living parent or
if that child receives assets or is entitled to support from another source,
you must obtain court approval before using guardianship assets for the child’s
support, maintenance, or education. You must file a petition or include a
request for approval in the original petition, and set forth which exceptional
circumstances justify any use of guardianship assets for the child’s
support. The court ordinarily will grant such a petition for only a limited
period of time, usually not more than one year, and only for specific and
limited purposes.
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INVENTORY
OF ESTATE PROPERTY
Locate
the estate’s property – As guardian
of the estate, you must locate, take possession of,
and protect the child’s income and assets that
will be administered in the estate. You must change
the ownership of all assets into the guardianship
estate’s name. For real estate, you should
record a copy of your Letters of Guardianship with
the county recorder in each county where the child
owns real property.
Determine the value of
the property – As
guardian of the estate, you must
arrange to have a court-appointed
referee determine the value of
the estate property unless the
appointment is waived by the court.
You, rather than the referee, must
determine the value of certain “cash
items.” An attorney can advise
you about how to do this.
File an inventory and appraisal – As
guardian of the estate, you must
file an inventory and appraisal
within 90 days after your appointment.
You may be required to return to
court 90 days after your appointment
as guardian of the estate, to ensure
that you have properly filed the
inventory and appraisal.
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INSURANCE
Insurance
coverage – As guardian of
the estate, you should make sure that there
is appropriate and sufficient insurance
covering the assets and risks of the estate.
You should maintain the insurance in force
throughout the entire period of the guardianship
or until the insured asset is sold.
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RECORD
KEEPING AND ACCOUNTING
Records – As
guardian of the estate, you must keep complete,
accurate records of each financial transaction
affecting the estate. The checkbook for the
guardianship checking account is your indispensable
tool for keeping records of income and expenditures.
You should also keep receipts for all purchases.
Record keeping is critical because you will
have to prepare an accounting of all money
and property you have received, what you
have spent, the date
of each transaction, and its purpose. You will also have to be able to describe
in detail what is left after you have paid the estate’s expenses.
Accountings – As guardian of the estate, you must
file a petition requesting that the court review and approve your accounting
one year afteryour appointment and at least every two years after that.
The court may ask that you justify some or all expenditures. You should
have receipts and other documents available for the court’s review,
if requested.
If you do not file your accounting as required, the court will order you
to do so. You may be removed as guardian for failure to file an accounting.
Format – As guardian of the estate, you must comply
with all state and local rules when filing your accounting. A particular
format is specified in the Probate Code, which you must follow when you
present your account to the court. You should check local rules for any
special local requirements.
Legal
advice – An
attorney
can
advise
you
and help
you
prepare
your
inventories,
accountings,
and
petitions
to the
court.
If you
have
any
questions,
you
should
consult
with
an attorney.
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OTHER
GENERAL INFORMATION
Removal
of a guardian – A
guardian may be removed for specific
reasons or when it is in the child’s
best interest. A guardian may be
removed either on the court’s
own motion or by a petition filed
by the child, a relative of the
child, or any other interested
person. If necessary, the court
may appoint a successor guardian,
or the court may return the child
to a parent if that is found to
be in the child’s best interest.
Legal documents – For your appointment
as guardian to be valid, the Order Appointing Guardian
of Minor must be signed. Once the court signs
the order, the guardian must take prepared Letters
of Guardianship to the clerk’s office where
the clerk will issue the letters. Letters of Guardianship is
a legal document that provides proof that you have
been appointed and are serving as the guardian for
a minor. You should obtain several certified copies
of the Letters from the clerk. These legal
documents will be of assistance to you in the performance
of your duties, such as enrolling the child in school,
obtaining medical care, and taking care of estate
Attorneys and legal resources – If
you have an attorney, the attorney will advise
you on your duties and responsibilities,
the limits of your authority, the rights
of the child, and your dealings with the
court. If you have legal questions,
you should consult with your attorney.
Please remember that the court staff cannot
give you legal advice.
If you are not represented by an attorney, you may obtain answers to your
questions by contacting community resources, private publications, or your
local law library.
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