Probate Guardianship: Frequently Asked Questions
By: Law Offices of Jeffrey S. Graff
Guardianship can be an alternative to custody when circumstances require
another person to take over the child’s care. If the child’s
parents are incapacitated, incarcerated, or are deceased, the child’s
care will be given to a designated guardian. This is known as probate
guardianship, and allows the guardian to obtain the authority needed to
make decisions for the child.
There are two kinds of probate guardianship:
- Guardianship of the Person
- Guardianship of the Estate
Guardianship of the Person
This child may be living with an adult who is not their parent when they
are in the care of a guardian. The guardian will need the authority to
make decisions for the child. When a guardian has guardianship of the
person, the adult has full legal and physical custody of the child. They
are responsible for meeting all the needs of the child, including:
- Safety and protection
- Medical and dental care
- Education and any special needs
- Food, clothing, shelter
- Physical and emotional health and growth
Guardianship of the Estate
These guardians manage the child’s income, investments, or other
property until the child reaches adulthood. If a child inherits assets
or money, they may need a guardian of their estate. Typically, the court
will appoint the surviving parent to care for the child’s estate.
It is also possible that the guardian of the child will also be appointed
the guardian of the estate.
Frequently Asked Questions about Guardianship
Before agreeing to guardianship, you may have questions about what is involved
and how this will affect your life and family. Below are some of the most
common questions about guardianship.
Do I want legal responsibility for the child?
As a legal guardian, you will have the same responsibilities as the child’s
parents would have, including liability for their actions. With guardianship,
you will need to keep careful records of the child’s health, education,
finances, and other issues. These will be reported to the court, and y
may need court permission to make certain financial decisions.
How will this guardianship affect my family?
Essentially, you will become parent to a child. This may cause strain in
your other relationships, as well as add a financial burden. Your health,
energy, and available time will also need to be considered before accepting the role.
Can I afford to become a guardian?
While it is likely that the child will receive some form of benefits or
income from Social Security, public assistance, or their estate, you may
have to make up the difference with your own finances. If you are unsure
if you can afford to care for the child, you may not want to take on the
responsibility for them.
How do I handle the child’s remaining relatives?
There can be tension if the child’s relatives were not designated
as guardians for some reason. You may be given guardianship of the child
while the parents are alive, but unable to care for the child. If this
is the case, the parents may contest your guardianship or claim they have
visitation rights, leading to the headache of a legal battle. If you are
committed to protecting the child, you may face some opposition.
Can I name a guardian for my own children?
Yes! You are able to name a guardian in your will or in a letter indicating
your choice. Be sure that the document is with other important papers
so it is found, should you be incapacitated. If both parents are dead,
the court will appoint a guardian based on your choice, the child’s
desires, and what is best for the child.
Is guardianship always necessary?
You may be able to have physical custody of a child without having guardianship.
If you worry the parents won’t agree, filing for guardianship would
cause problems, you don’t want your personal life monitored by the
court, or the custody is only for a short period of time, guardianship
may not be appropriate.
Can I still be a caretaker without being a guardian?
In California, the child’s parents can sign a Guardianship Authorization
Affidavit. This document allows a relative to make decisions about the
child’s education and medical care. It also can be used to allow
a non-relative to make decisions regarding education and school-related
medical care. This form allows you to take informal custody of the child
Guardianship of a child is a meaningful decision, but can be a legal hassle.
If you need help filing for guardianship, I can help. I am a Westlake
Village family law attorney with more than 30 years of experience helping
families look after their children. Contact the Law Offices of Jeffrey
S. Graff to begin your case with a free consultation.