GUARDIANSHIP 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. 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.