Every child needs a responsible adult to love, support and care for their basic needs. When the child’s parents permanently or temporarily cannot provide that care to them or are otherwise unfit to parent, another adult can step in to provide this crucial service.
While learning how to become a legal guardian can be somewhat complex, the amount of good you can do by making such a decision can change not only a child’s life, but your life as well. By becoming a guardian, you can give hope to a child who desperately needs it.
Continue reading to learn more about how to become a child’s legal guardian, as well as factors to consider before committing to the decision.
What Is a Legal Guardian?
A legal guardian is someone who is appointed by the court to care for the personal needs and/or finances of a minor, also called the ward.
By becoming a child’s legal guardian, you will have the power to act on the child’s behalf on important issues, such as education and health care. California Probate Code sections 1500-1611 provides further insight about what it takes to become legal guardian to a minor.
What Are the Requirements for Being Legal Guardian to a Minor?
To become a guardian, the main requirement is that the petitioner be at least 18 years old. Additionally, the court may consider other factors, such as:
- Can the petitioner pass a background check with no felonies or misdemeanors?
- Are they financially and physically capable of caring for the child?
- Do they have sufficient time and flexibility to meet the child’s needs?
- Who does the minor want as their guardian?
The court will investigate anyone who’s attempting to become a legal guardian to ensure they are a good fit for the role. Any responsible adult can become a child’s guardian; they do not have to be related to the child in any way.
Guardians of the Person
The guardian of the person acts similarly to the child’s biological parent, in the sense that they are tasked with caring for the child’s personal needs.
As a minor’s guardian of the person, you’ll typically have physical custody of the child. You’ll also be responsible for ensuring the child attends school, has access to nutritious food, maintains good hygiene, and receives all the mental health, medical and dental care they need, among other things.
It can be complicated to be a guardian of the person in certain situations. For example, what if the child’s doctor is recommending a procedure that comes with significant risks? Do you consent to it? This is why it helps to have a probate lawyer on standby if you are a guardian. When you are unsure about whether or not to make a certain decision, a lawyer can provide guidance.
Guardians of the Estate
Guardians of the estate are rare because most children don’t own enough assets to comprise an estate. If a child does have an estate, it could be because they have earned significant wages (e.g., as child stars) or have been left an inheritance, which they legally are not allowed to access until they turn 18.
The role of a guardian of the estate entails managing the child’s finances, accounts and estate decisions. This can include everything from investing their assets in a responsible manner to paying the child’s expenses. A guardian of the estate is required to track every transaction they make related to the child’s estate.
How Long Are Guardians Required to Serve?
How long a guardian must serve depends on the type of the guardianship, though all guardianships in California will automatically terminate on the ward’s 18th birthday.
Whether or not a guardianship will remain in effect until the ward turns 18 will be determined by whether the guardianship was designated as temporary or permanent.
Temporary vs. Permanent Guardianship
Temporary guardianships are guardianships that are established for a set period of time, while permanent guardianships are intended to last until the ward turns 18. If you are deciding between temporary guardianship vs. permanent guardianship, it’s important to consider the situation of the minor’s biological parents.
Some examples of when temporary guardianship may be the best option is when a single parent with full custody becomes incarcerated or has an emergency medical issue that will make it difficult for them to care for their child for several months.
Permanent guardianship is generally the best option when a child’s parents are not expected to be able to care for them in the foreseeable future. It’s important to note that permanent guardianship is not truly permanent – it ends when the child turns 18.
Keep in mind that temporary guardianships can be extended or made permanent if the child’s needs call for it, and permanent guardianships can be terminated early if the situation of the biological parents improves. Any changes to guardianship arrangements will need to be approved by the court.
Emergency Guardianship
Emergency guardianships are available for dire situations, such that the minor is question is at risk of incurring harm to their person or finances if immediate action is not taken to protect them. For emergency guardianship to be granted, specific requirements must be met and no other alternatives should exist for the child’s care.
Emergency guardianships are inherently temporary, as they’re intended to be a last-resort remedy. Nevertheless, they can be extended or transformed into permanent guardianships if the minor’s circumstances call for it.
What to Consider Before Becoming Legal Guardian to a Child
Depending on the age of the proposed ward, you could be acting as their legal guardian for years. This is why it’s crucial to think about your personal goals, career, finances and social life before delving into how to obtain guardianship in California.
It’s particularly important to consider how your immediate family would be affected by your guardianship plans, since they not only would have to reside with the ward but may not receive the same level of care and attention from you once the ward moves in. Before becoming legal guardian to a child, it is essential to make sure your family is on board.
While guardians can always resign from their role before the guardianship terminates, doing so could cause upheaval in the ward’s life — which could leave them worse off than when they’d been residing with their parent(s).
If you think the decision to back out is difficult now, remember that it’s much easier than resigning after you’ve been guardian to a minor for several years. It’s important to view guardianship in the same way you would view other long-term decisions, such as purchasing a house or getting married.
Are You Willing and Able to Take on Parental Responsibilities?
Getting excited about the initial prospect of becoming a guardian is easy. You may see an opportunity to help a child in your life, envision the living situation, and believe you’re prepared to begin the guardianship.
What isn’t so easy is having to be present for the child day in and day out to fulfill their every need. Whether you have your own children to take care of or health issues won’t matter. You signed up to be a guardian, and with that role comes responsibilities.
If you fail to fulfill your duties, you not only could be removed as guardian, but you could have to pay damages for any harm you caused the child.
Before making that leap into figuring out how to get legal guardianship, it’s worth taking some time to think about how this new potential member of the family would fit in with your current circumstances.
Can You Handle Extra Financial Burdens?
While it may not be the most comfortable topic, considering your financial situation is an absolute necessity before becoming a guardian. You may have estimated you’ll be fine with an extra mouth to feed, but it’s critical to conduct a thorough review of your finances and be realistic about how much it actually will cost to raise a child.
Apart from obvious expenses like food, clothing and health care, you may have additional expenses in the form of educational supplies, athletic activities, hobbies and mental health costs. Becoming guardian to a minor means taking on many extra financial burdens that you may or may not be prepared for.
Step-by-Step Guide for How to Obtain Guardianship
Obtaining a guardianship can be a simple or complex process depending on whether there are objections to the proposed guardianship or multiple petitioners involved.
Regardless of whether unforeseen events come up on your path to becoming a guardian, the steps for obtaining guardianship are the same. The following sections explain the exact actions you’ll have to take to get guardianship of a child.
Assess the Situation
It is important to get a clear understanding of the child’s life situation before filing a petition for guardianship.
For example, what are the factors that have led you to believe the child needs a legal guardian? Are their parents absent from their life? Are they living in an unsafe environment? Do they seem physically or emotionally unhealthy? Would the guardianship you’re proposing require the child to uproot their life?
It’s not uncommon to become preoccupied with how to get legal guardianship of a child before assessing the situation to determine whether the child truly needs a guardian, and if they do, if you would be the ideal choice.
Note that the court generally prefers to keep children with their biological parents unless there is reason to believe the child will be harmed by remaining in that living situation. As such, isolated incidents of parental negligence or misconduct won’t generally qualify the child for being placed under guardianship.
Assessing the situation accurately can be difficult to do on your own, especially if emotions are involved, so it may be a good idea to involve a probate lawyer at this stage of the process.
File Guardianship Petitions
If you’ve assessed the situation and decided to move forward with your guardianship case, the next step is to file your guardianship petition with help from your lawyer.
In your guardianship petitions, you will want to clearly describe your reasons for requesting guardianship over the minor in question, as well as provide evidence to support your claims. Be sure to make copies of your petitions before delivering them to the courthouse nearest to where the child lives. Not every courthouse handles guardianship cases, so it is worth checking the website of the courthouse in question to verify that they do before traveling there.
The documents you will need to complete to become a legal guardian in California include:
- Petition for Appointment of Guardian of the Person
- Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
- Confidential Guardian Screening Form
- Notice of Hearing: Guardianship or Conservatorship
- Duties of Guardian
- Letters of Guardianship
- Order Appointing Guardian or Extending Guardianship of the Person
California offers a convenient guardianship form set that contains most, if not all, the forms you will need to file for guardianship. If this process is overwhelming to you, remember that a guardianship attorney can always help make the process more seamless.
Once the necessary petitions have been filled, the next critical step is to make at least three copies of each document. While some will go to the courthouse, you’ll want to keep some copies on file for yourself.
Provide Notice to Interested Parties
Now that you’ve filed the necessary petitions with the court, the next step is to give notice to the parties that may be affected by the guardianship. Before you pick up the phone, note that there is a specific process for delivering these notifications.
Most importantly, another adult (known as your server) is the one who will notify the child (if they are of the appropriate age) and other concerned parties. Depending on the recipient, the server must either hand-deliver the documents or mail them. If you are working with an attorney, your attorney’s office should be able to take care of this step for you.
The specific people who must be informed of a guardianship proceeding are named in California Probate Code section 1511. These include:
- The ward (if they’re 12 or older)
- The adult(s) with custody of the proposed ward
- The parents of the proposed ward
- The current guardian of the proposed ward (if applicable)
Note that other people and organizations who are not on this list may have to be informed as well, depending on the minor’s specific circumstances.
Working with a lawyer to deliver notification can help ensure timely notices are delivered using the right methods to all the parties who are entitled to them.
Keep in mind that the proposed ward and their family members must be given notice at least 15 days prior to the guardianship hearing.
Undergo an Investigation
As part of the process for establishing guardianship, the court will send a professional to do a thorough investigation of your home. This professional generally will be a court investigator or someone from Child Protective Services or Social Services.
The purpose of the investigation is to gather information about you and your home to ensure the living conditions will be suitable for the proposed ward. The investigator will use that information to compile a report for the judge.
The investigator may do the following during their home visit:
- Assess where the child will be attending school
- Conduct interviews with the you and other members of your family
- Determine whether the home is a safe place for a child to live
This investigation should be taken seriously, as it’s an integral step on the path to attaining guardianship.
If living, the child’s parents generally will also be interviewed as part of the court’s investigation, and in some situations, the child will be asked about their feelings surrounding the proposed guardianship as well.
Attend Your Court Date
Having an experienced guardianship attorney on your side at the guardianship hearing will prove particularly useful. A lawyer is comfortable in the courtroom and can not only inform you of all the rules and details you should know, but also argue your case for you, which can make a world of difference in getting the outcome you want out of your case.
The judge may ask you questions to assess your qualifications for becoming a legal guardian. They may ask why you want to be a guardian and how you plan to tend to tend to the child’s needs with your existing obligations, among other things. This is to determine whether the guardianship being proposed is in the child’s best interest.
Fulfill Your Guardianship Responsibilities
If you’ve made it to this step, it’s likely your guardianship petition was granted and you are now a child’s legal guardian.
If you thought the process of establishing guardianship was difficult, carrying out the terms of the guardianship could prove even more difficult. This is because you now are responsible for the welfare of a child, and every action you take on their behalf will positively or negatively impact them.
Luckily, your lawyer can consult you throughout the guardianship and provide sound advice whenever you need it.
As a legal guardian, you must meet all the child’s needs in the same way a parent would. Your guardianship responsibilities generally will include:
- Keeping custody of the child in your home
- Adequately feeding and clothing the child
- Ensuring that the child goes to school and their educational needs are met
- Being an advocate for the child in education and health care settings, among others
- Securing mental health care for the child
- Making medical decisions for the child and consenting to any procedures the child may need
- Managing the child’s financial affairs (this only applies if you’ve been appointed as a guardian of the estate )
Since no child’s needs are the same, your responsibilities as a guardian may vary from the responsibilities described above. It is recommended you get clear on the terms of your guardianship prior to stepping into your role to avoid going beyond the authority you’ve been granted or being negligent with the child’s care.
Hiring a guardianship attorney to help you navigate your responsibilities is not only guaranteed to make your job easier, but it can help you avoid taking missteps within the guardianship that could have lifelong repercussions on the child and potentially cost you as well.
How Can a Guardianship Attorney Help You?
If you’re interested in finding out how to obtain guardianship of a child, hiring an attorney can remove the guesswork from the process.
Here are some of the ways an experienced attorney can guide you in becoming legal guardian to a minor:
- Completing and filing the required forms
- Advising you on how to prepare for your interview with the investigator
- Keeping you updated on upcoming court dates and other appointments
- Representing you at your court hearing
- Making arguments to support your case if the proposed guardianship is being contested
- Consulting you on decisions you must make on behalf of the ward once the guardianship is established
A guardianship can be complicated, and it’s too important to approach halfheartedly. Remember that hiring an experienced attorney will give you the best chance at a favorable outcome.
FAQs on How to Obtain Legal Guardianship
When you have a sibling abusing power of attorney, it can be devastating for the entire family. Learn more about sibling POA abuse from our FAQs.
If you’re trying to understand how to get temporary guardianship of a minor, you’ll find that the process is largely the same as petitioning for permanent guardianship.
One minor difference concerns the timing of the hearing. Petitions for the appointment of a temporary guardianship are typically heard on an expedited basis, because they usually involve some level of urgency.
To understand how to obtain temporary guardianship, you can review the steps provided in this article for obtaining guardianship. To go more in-depth into temporary guardianship and how it differs from its permanent counterpart, consult California Probate Code sections 2250-2258.
When the proposed ward is disabled, it’s likely to make the guardianship process more intensive. This is because there are concerns about whether the guardian is aware of the child’s special needs and whether they have the experience to properly tend to them.
Furthermore, there may be other people and organizations involved, such as caretakers or supported living services.
While every guardianship varies based on the needs of the child, caring for a disabled child comes with a unique set of challenges. But if you’re researching how to get guardianship of a disabled child, chances are that you are already aware of these challenges and trust in your capacity to care for the disabled child in the way that they need.
A ward’s circumstances, especially if the ward has special needs, are bound to affect the guardian’s financial responsibilities, living environments, daily life and other obligations. It’s important for the guardian to consider all of these things before filing for guardianship. For example, if the ward uses a wheelchair, your home may have to be altered to accommodate their needs.
If you’re asking how to become a legal guardian of a sibling, it’s likely because one or both of your parents are incapacitated or have died. It is noble that you are willing to step into this role, as it could help your sibling avoid foster care.
When the proposed ward is your own sibling, it’s reasonable to expect the process to be easier than when there is no relation to the ward at all.
Presumably, you already have a relationship to the proposed ward as their sibling, and you may already be familiar with their needs. This familarity will be strongly considered by the judge when it comes to granting you guardianship over your younger sibling.
Of course, you will still have to prove your fitness to be appointed as guardian to the court, but you can easily do this with help from a lawyer. The process for becoming legal guardian to a sibling is no different from the standard guardianship process.
No, it is not possible to obtain guardianship of an 18-year-old in California unless the young adult in question is seeking special immigrant juvenile status in federal immigration court, which you can read more about here.
While California guardianships are reserved for minor children, similar arrangements called conservatorships can be established to protect adults, regardless of whether they’re 18 or 90.
Although the terms conservatorship and guardianship are often confused, it’s important to understand the key difference:
Conservatorships are for adults who need help managing their personal and financial affairs.
Guardianships are for minors who lack the proper parental care to have their needs met.
Since a conservatorship involves caring for the needs of an adult, its rules and requirements differ from those of a guardianship.
Learn more about how to get a conservatorship.
- Parents typically have to consent to an adoption, but a guardianship can be granted without their consent.
- An adoption is permanent, whereas a guardianship ends when the ward turns 18 years old.
- Guardians are not considered the ward’s parents, but adoptive parents are.
- Adoptive children can inherit from their adoptive parents as heirs, whereas a ward has no parent-child relationship with a guardian and so would not be considered their heir.
- When a child is adopted, the familial relationship between the child and their biological parent is severed. When a child is under guardianship, the familial relationship with their biological parents is maintained (assuming they are still living).
It’s reasonable to expect the process of establishing a guardianship to take at least two months from the day you file the petition to the day the guardianship hearing is held, which is when the judge generally will decide whether to grant it.
The most time-consuming parts of establishing guardianship are typically filling out the required forms and the court investigation. By having a guardianship attorney on your side and being fully prepared for each step, you can reduce the time involved in the guardianship process.
If you file a guardianship petition, you’re required to provide notice to any parties who may be affected by the proposed guardianship to provide them with ample notice to attend the hearing and voice their opposition. Being that a child’s biological parents would be directly affected by a proposed guardianship, they have every right to file a formal objection.
Depending on the specific circumstances of the guardianship case, the parents may have some influence over the decision to appoint you, or they may not. For example, if a single mother needs a temporary guardian to care for her kids while she’s on deployment with the military, but objects to her sister becoming that guardian, her opinion could influence the judge.
However, whether to appoint a guardian and who it should be are ultimately decisions that rest with the court. It could be that a parent’s objection is overruled if the guardianship is deemed to be in the best interest of the child.
It’s reasonable to expect the biological parents’ opinions to carry some weight in the guardianship decision, but they may not be the deciding factors in whether the proposed guardianship is ultimately granted.
Curious how to go about getting a guardianship? Contact Keystone for help
A guardianship attorney can take the stress out of your case by being available to guide you through every step of the guardianship process. With specialized knowledge of the law, the right attorney can help you see the best path forward, maximizing your odds of obtaining a guardianship.
Contact Keystone to learn more about how we can help you. We look forward to hearing from you.
