Legal guardianship begins when the court determines that the person in question cannot make sound decisions for him or herself and designates the responsibility to someone else. In most cases, guardianship cases result from deceased parents or parents who are unable to take care of their child(ren) in a balanced and healthy way. There are also cases when adults become guardians for other adults who cannot make decisions for themselves.
Regardless of your current situation, we recommend that all parents of minor children have an estate plan in place or have written and notarized documents shared with appropriate parties outlining who should take over guardianship in an unforeseen emergency.
Guardianship of Children
Guardianship means that an adult other than the parents has the legal right to make decisions for a minor child or children. When you become a guardian of a minor child, the parents can no longer make these decisions for them. In most cases, an adult becomes a guardian of minor children when the children’s parents are either deceased, incapacitated, disabled in a way that compromises parenting, or incarcerated.
There are three different types of guardianship for children in California:
1. Informal guardianship
This is the only type of guardianship that does not require legal approval from the court system. Family members or friends may take children into their home, or move into the child’s home, to take over the parenting responsibilities. This may happen as the result of the parent’s financial setback, disability, long-term absence, etc. If the adults are in complete agreement, informal guardianship occurs via verbal and informal written agreements (called an informal guardianship authorization) granting permission for the guardian to make medical and academic decisions. Still, guardian rights do not supersede those of the legal parents. The state also recognizes the Caregiver’s Authorization Form in lieu of an informal guardianship authorization. This is NOT an official court document but works well in temporary, informal arrangements.
Informal guardianship status is terminated when the parent can take back over. Informal guardianships are best when the guardianship is short-lived, and there is a clear end in sight. For anything longer than a month or two, it may make more sense to arrange legal guardianship that can be instantly reversed when the parent returns or can reclaim the parenting role.
In most cases, informal guardianship is more about protecting and ensuring the physical and emotional wellbeing of a child in terms of where they live, the food they eat, clothing, supporting academics and social life, etc. It should not be used if the guardian is responsible for major legal and medical decisions.
2. & 3. Legal Temporary or Permanent Guardianship
If the legal parent(s) is incapacitated in some way or out of the area for a long period of time, it is better to go through the court system and request legal temporary or permanent guardianship. This version is much more secure for the children and alleviates any stress associated with being told you can’t make a particular decision, choice, or action during an emergency – and when the child needs you most.
As a legal temporary or permanent guardian, you are legally obligated to:
- Assure the maintenance and care of another person
- Make financial, medical, and educational decisions
- Report to the court about the guardianship status on an annual basis
Depending on the situation’s urgency, legal temporary or permanent guardianship is a two-part process. At the end, the guardian(s) can make full legal, medical, and other decisions related to the child’s life. The guardian is also fully (and legally) responsible for the child’s physical wellbeing.
Legal guardians must be adults and cannot have any record of felonies or misdemeanors. Historical misdemeanors may be fine, but the court ultimately decides. The process of becoming a temporary or permanent guardian requires:
- Petition for Appointment of Guardian of Minor
- Required attachments to Petition (must be custom prepared)
- Guardianship Petition–Child Information Attachment
- Notice of Hearing–Guardianship or Conservatorship
- Consent of Proposed Guardian, Nomination of Guardian, Consent to Appointment of Guardian, and Waiver of Notice
- Duties of Guardian
- Letters of Guardianship
- Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
- Confidential Guardian Screening Form Any other forms the local court requires
- Any other forms required by the court
Adults seeking legal guardianship for their children, or adults seeking to become guardians, should consult with family law or probate law professionals to make the process as easy, streamlined, and efficient as possible. Even the smallest errors can result in paperwork being kicked back and the entire process starting over or being delayed until the correct paperwork is submitted.
Temporary guardianships end as per the agreement (a specific length of time, the release of an incarcerated parent, when the parent reclaims the capacity to take responsibility for the child, etc.).
Guardianship for Adults (aka Conservatorship)
As you can imagine, there are cases when adults are not able to care for themselves due to some type of disability, temporary incapacity, or other reasons. In these cases, as with minors, another adult is legally appointed as a temporary or permanent guardian. However, in the state of California, we call it conservatorship. The role of guardian is referred to as “conservator.”
Unlike with minor guardianship, where you can have an informal arrangement, all adult conservatorship situations must be granted by the court system.
Reasons adults may need a conservator:
- They may have mental or physical disabilities that render them incapable of caring for themselves physically, legally, or financially.
- Anyone with disabilities that render them incapable of making legal/financial decisions
- They have a progressive disease or medical situation that compromises memory and cognitive function (such as Alzheimer’s, a stroke, or a traumatic brain injury).
Depending on the situation, the court will either grant limited conservatorship (where your role is limited to certain functions) or general conservatorship (where you are responsible for most of the legal and financial decision-making). Conservatorships are not taken lightly, and the court system meticulously monitors conservators to ensure they’re not taking advantage of their conservatee.
Avoid the Need for Guardianship or Conservatorship
While the courts have created a pathway to becoming a guardian or conservator, it is always better to proactively work with an estate attorney. Together, we’ll create wills and estate plans to ensure no minor or incapacitated adult is vulnerable.
Ready to ensure your loved ones (and yourself) are taken care of in the event of a death or unforeseen event? Schedule an estate planning consultation with Tseng Law Firm.