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Oftentimes, parents who are unable to care for their child but don’t want to put their child up for adoption decide to leave their child with a close friend or family member. This can become problematic because those individuals do not have the legal authority to make decisions on behalf of the child. Legal Guardianship is a court order that establishes someone other than the parents as responsible for taking care of a child.
A legal guardian may be a grandparent, foster parent, aunt or uncle, sibling, friend of the family, step-parent, or someone else who knows the child. Being appointed as a guardian gives that guardian all the rights and responsibilities that a biological parent would have.
Generally, a guardian can only be appointed for a minor (child under 18 years of age). In the case of immigrant youth who are seeking special immigrant juvenile status, California law allows for a guardian to be appointed or extended for a young person who is already 18 but still under 21.
Many guardianships arise because one or both parents are presently unable to properly care for their child and want to put their child in an environment that is best for them. Some common situations giving rise to guardianships are:
- One or both parents are in the military and are about to be deployed;
- Serious mental illness of one or both parents;
- Severe physical disability of one or both parents;
- One or both parents have been convicted of a crime and must serve time in jail/prison;
- One or both parents have to attend a rehabilitation program to get past a drug or alcohol addiction; or
- One or both parents are unable to 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.
Establishing Guardianship in California
Much like child custody determinations in family court, the “Best Interest of the Child Test” is used to determine whether to appoint a particular guardian, if any, to a child. Ultimately, the court wants the child to be raised in a stable, loving, and safe environment. The person requesting to become a child’s legal guardian must prove by clear and convincing evidence that the guardianship is in the child’s best interest.
A guardianship will not be granted, and should not be sought, simply because a third party does not like the way the child’s biological parent is raising the child. Parents have a fundamental right to raise their children, and the court will only interfere with that right in limited situations.
Detriment to the Child Finding Required For Guardianship under Family Code 3041
Before making an order granting custody to a person or persons other than a parent, over the objection of a parent, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the non-parent is required to serve the best interest of the child.
Differences Between Legal Guardians and Adoptive Parents in California
In a guardianship, the court gives the guardian legal custody of a child, but the guardian does not adopt the child. The guardianship may last until the child turns eighteen or the court may terminate the guardianship and return the child to the parents or appoint a new guardian. When someone becomes a child’s legal guardian, the biological parents retain their parental rights and can request visitation with their child.
The guardianship can be terminated when the parent’s situation improves and the biological parent shows they can care for their child. The court can also oversee the appointed guardian by supervising the guardianship, as well.
However, in an adoption, the parents lose parental rights to the child forever. They don’t have rights to visitation or to have any type of relationship with the child. Parents can’t get those rights back and adoptive families aren’t supervised by the courts. If you would like more information about the difference between adoption and guardianship laws in California, contact a skilled adoption attorney.
Guardianship Laws in California
There are two (2) types of probate guardianships: (1) guardianship of the person, and (2) guardianship of the estate. The court may either appoint one person as the guardian of both the person and the estate or appoint two (2) different people.
Requirements for Guardianship of the Person in California
In this type of guardianship, the guardian possesses full custody (both physical and legal custody) of the child and has the same rights and responsibilities as the biological parent. The guardian must provide the child with the following:
- Food, clothing, and shelter;
- Medical and dental care;
- An education, including any of the child’s special needs.
As guardian of the person, the guardian decides where the child lives. However, if the guardian moves, the court must be informed in writing immediately. If a guardian wants to move outside of California, the court’s permission is required. Guardians cannot let the child live with his or her parents or any other third parties. The child must live with the guardian unless the court indicates otherwise.
Of course, the child can stay with other people for visits or short periods of time without a court order, as long as the child continues to primarily live with the guardian. The court can fashion individualized child custody and visitation agreements or orders for parents or other third parties to have visitation with the minor child, if it is in the best interests of the child and the situation warrants such a joint custody arrangement.
The guardian decides where the child goes to school, must stay involved in the child’s education, and help the child get any special services, like tutoring, that he or she needs.
The guardian must also take care of the child’s medical and dental needs, including getting the child counseling or other mental health services if the child needs them. But the guardian cannot place the child in a mental health institution without a court order unless the child agrees.
Further, the guardian must ensure the child’s safety and protection, and enable to the child to grow physically, mentally, and emotionally.
Guardians decide whether or not to give the child permission to apply for a driver’s license, and must get car insurance for the child. Like a parent, a guardian may also be held liable for negligent supervision of the minor or the negligent entrustment of a motor vehicle (giving the child access to a car when he or she is unlicensed or otherwise not capable of handling the responsibility).
Guardians may give the child permission to enlist in the military, but if the child enters into active duty with the armed forces, the guardianship will end. California law will consider the child to be an adult (emancipated).
Both the guardian and the court must give permission for the child to get married. If the child gets married, the guardianship will end. California law will consider the child to be an adult (emancipated).
Like parents, guardians may also be held liable for intentional acts the child performs and any damage the child may cause.
At least once a year, guardians must turn in a status report to the court. Guardians must also meet with any court investigators or social workers sent by the court and come to court when the court orders them to.
Guardianship of the Estate under California Law
A guardianship of the estate occurs when a minor has acquired substantial assets (typically an inheritance), and an individual needs to be appointed to protect those assets. This guardian is typically a surviving parent. A guardianship of the estate manages a child’s income, money, and/or property (real or personal) until the child turns 18. The guardian of an estate is held to a very high standard of care known as the “fiduciary duty.”
This concept of “fiduciary duty” is of the utmost importance and should not be violated under any circumstances.
Fiduciary Duties of Guardians of the Estate in California
The fiduciary duty constitutes the highest standard of care under the law. In the case of a guardianship of the estate, the guardian is the individual who owes the fiduciary duty and is referred to as the “fiduciary,” while the child (the person who gains the benefit of that duty) is referred to as the “beneficiary” or “principal.” There are five (5) broad categories of duties that the fiduciary duty of a guardian includes:
- Duty of Loyalty – This duty is encompassed in a public policy which requires that the fiduciary scrupulously advance the beneficiary’s interest while simultaneously avoiding taking any action solely to benefit themselves. A fiduciary is not allowed to use their position for their own personal gain.
- Duty of Good Faith – A fiduciary has a duty to make a good faith effort to further the beneficiary’s interests, avoid violating the law, and fulfill his/her obligations to the beneficiary.
- Duty of Disclosure – A fiduciary has a duty to utilize complete candor when communicating with the beneficiary.
- Duty of Prudence – A fiduciary has a duty to protect the beneficiary’s assets using the same degree of skill, caution, and care that a prudent fiduciary would exercise.
- Duty of Care – A fiduciary is required to use all readily available material information prior to making a decision affecting the beneficiary’s assets. To determine whether the fiduciary was informed of all material information, the court may look at the quality of the information, the advice available to the fiduciary, and whether the fiduciary had an opportunity to acquire additional information prior to making their decision. Additionally, the fiduciary is required to view the information available to them with a “critical eye” rather than blindly accept the information as accurate.
It can be easy to violate these duties if a guardian does not have special training or the advice of a guardianship attorney. For this reason, it is better to have a lawyer represent you when you are asking the court to appoint you guardian of the estate. The lawyer’s fees are paid for by the estate, and must be approved by the court so there is protection for the minor child.
Managing a Child’s Estate in California
A guardianship of the estate is obligated to:
- Manage the child’s assets (money);
- Make intelligent investment decisions on behalf of the child (this generally includes a duty to diversify the child’s portfolio); and
- Manage the child’s property (real or personal).
If the child has a parent who is still alive, or the child gets money or can get financial support elsewhere, then the guardian needs the court’s permission to use the estate money to pay for child support, maintenance, or education. Generally, the court can give the guardian permission to use the minor’s money for less than a year, and for specific things.
Guardians should keep complete and accurate financial records, including records of every transaction that has to do with the estate and get and/or keep insurance coverage on the child’s property.
Guardians must keep all the child’s money and property separate from everyone else’s, including the guardian’s own money and property. Unless there is a court order to the contrary, a guardian cannot:
- Spend the estate’s money;
- Pay him or herself or his or her lawyer with the estate’s funds;
- Borrow money from the estate; or
- Give away any part of the estate.
Within 90 days of being appointed, the guardian must file certain financial reports with the court, including an inventory and appraisal signed by a referee showing the value of the assets in the estate.
The guardian must create a list to inventory all of the child’s property and find, get, and protect all money and property that are part of the estate; put all property in the estate’s name; and record copies of the Letters of Guardianship (Form GC-250) with the County Recorder in every county in which the child owns real property.
In order to achieve this, the guardian must first get a court-appointed referee, referred to as a “probate referee,” to determine how much the property was worth when the guardian was appointed. This must be done unless the court specifically indicates otherwise.
Guardians must prepare a report, referred to as an “accounting,” specifying the following:
- All money collected and all interest earned;
- All money spent and for what;
- The date of every transaction;
- The purpose of every transaction; and
- What is left after the estate’s expenses are paid. (Probate Code § 1061)
The accounting must be filed 1 year after the guardian is first appointed and every two (2) years thereafter, unless the estate is worth less than $7,000 and there is less than $1,000 per month income from sources other than public assistance or all estate funds are in blocked accounts. The guardian (or the guardian’s attorney) must file a motion with the court requesting that he/she be relieved of the duty to file an annual accounting under these circumstances.
If the accounting is not filed, the court may order the guardian to do so or remove the guardian in favor of another.
Knowledgeable Guardianship Attorney Offering Free Consultations
Our experience inside and outside of the courtroom allows us to consistently deliver exceptional results for the families we represent. Our guardianship attorneys are interested in finding creative, tailored solutions to each family’s problems, using the facts and investigative tactics necessary to produce real-time solutions for our clients.
Contact Our Experienced California Guardianship Attorneys Now
Natural parents, guardians, and future guardians can rely on the experience of our guardianship attorneys in obtaining the results they seek. Our attorneys have litigated guardianship cases throughout the State of California, including Los Angeles, Orange County, San Diego, Riverside, San Bernardino, San Jose, Sacramento, and Surrounding Areas in California. Call the experienced family law attorneys and probate attorneys at Talkov Law at (844) 4-TALKOV (825568) or contact us online for a free consultation about your case. Learn how our experienced guardianship attorney, Colleen Sparks, can guide you through the court process in a prompt and clear manner.
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