Who Will Take Care of My Children and Their Inheritance if the Worst Happens?
Types of Guardianships For Children
Guardianships For Children – A guardianship is a legal status whereby an adult is given authority to take care of the person of a minor child and/or the estate of the minor child. A “guardianship of the estate” is where the Guardian has control and custody of assets, property and accounts belonging to a minor child. A “guardianship of the person” is where the Guardian is responsible for the care, protection, or custody and medical issues of a minor child. Guardianships typically arise in the unfortunate circumstance in which both parents have passed away. Guardianships may also arise where parents are unable or unwilling to care for their children.
NOMINATION OF GUARDIAN PREFERENCES
Only the parent of a minor child has the legal power to nominate a Guardian of the person or a Guardian of the estate. Also an adoptive parent has the power to nominate. The nomination must be in writing and signed by the parent. A typical estate plan including wills and a living trust will contain paragraphs nominating guardians of the person and of the estate. Written nominations will be taken into account by the probate court when a guardianship legal proceeding has been started.
NOMINATIONS CAN DIFFER BETWEEN PERSON AND ESTATE
Often parents feel that some of their relatives or friends are more suited to be guardians of the person. Persons suitable to be guardians of the person are not necessarily suitable to take care of the estate of the minor so separate nominations are typically made for guardians of the person and guardians of the estate. Sometimes the same person is nominated for both positions but the law doesn’t require it.
COURT PROCEEDING REQUIRED
After the event happens that requires the establishment of guardianship, typically the death of both parents, a court proceeding is started. The probate court of California has jurisdiction over guardianships so a petition for appointment of Guardian GC-210(P)petition for appointment of Guardian is filed by the appointed guardians or any persons with the best interests of the minor in mind.
Along with the petition the written nomination of guardianship is filed and the court will take that into account. However, the court does have authority to decide who is actually the most appropriate person to be the guardian of both the person and of the estate. As a practical matter the parents’ nomination for guardianship of the person may have little effect. The court will make its own mind up depending upon all the facts and circumstances. The preference of the minor is taken into account, especially for those 12 years and older. After the court petition is filed, the court will review the petition and other required forms and information and in some instances there will be a court investigator to interview the minor and make recommendations to the court. Approximately one to two months after the petition is filed, there will be a court hearing and the court will make a decision as to whom the guardians will be. It is also possible to have a temporary guardian appointed in the interim.
CLAUSES FOR USE IN NOMINATION OF GUARDIAN
The nomination will typically appoint the surviving spouse if there is one and then if there is no surviving spouse there will be a list of people and preferences as to who should be selected first. The nomination to be effective can simply say “I nominate as Guardian of the person and estate of my minor children John Smith”. Additional clauses can be added to further define the role of the Guardian. For example it could be said that “I give the guardian of the person the same authority over the person of my child is apparent having legal custody of a child, and authorize the Guardian to exercise the power without the need for notice, hearing, court authorization, instructions, approval or confirmation in the same manner as if the authority were exercised by a parent having legal custody of the child.” Likewise, it could be said in the nomination that “I request that the guardian of my child’s estate be permitted to exercise all of powers or listed powers under the probate code independently and without the need for notice, hearing, court authorization, instructions, approval, or confirmation.” This additional language will give the persons nominated additional authority and/or justification to take actions pending the actual appointment of Guardian by the probate court. This language, even though it looks complete, is not legal to supersede the authority of the probate court to actually appoint a Guardian.
A court bond is often required in the guardianship of an estate. A court bond is an insurance policy that assures the court and the minor that if the guardian of the estate wrongfully takes or spends the estate money then it the insurance company will put it back. Parents can specify in the nomination of guardianship that a bond is not required and people typically do that if the estate is smaller and/or if they totally trust the person nominated to be the guardianship of the estate.
CONTINUING COURT SUPERVISION OF GUARDIANSHIPS
Guardians of the estate must file an accounting report with the probate court one year after the date of appointment. Also, at least every two years after the first accounting an accounting must be filed with the court up until the minor reaches age 18. Every Guardian of the person must annually complete a confidential status report in file it with the court. The relationship between the Guardian and the minor is governed by the laws of trust, except as modified by the law of guardianships. Every Guardian is a fiduciary and assumes the basic obligations of a fiduciary to act prudently and in good faith. Guardians can be removed by the court for violation of fiduciary duties or for failure to file accountings or the confidential status report.
CALL (949) 229-7034 to speak with Lawyer David L. Crockett
ALTERNATIVES TO GUARDIANSHIPS
In some instances a probate court supervised guardianship may not be required. Emancipation of a minor eliminates the need for a guardianship. Anyone under the age of 18 who has entered into a valid marriage, or is on active duty in the United States Armed Forces, or has received a declaration of emancipation does not need a court supervised guardianship. The requirements for securing a declaration of emancipation from the court are as follows: the minor must be at least age 14; the minor must willingly be living separately and apart from his or her parents or legal guardian with the consent of the minor’s parents or legal guardian; the minor must be managing his or her own financial affairs; the source of the minor’s income must be legal; and there must be a court finding that emancipation is not contrary to the minor’s best interests
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