Guardianships can be godsends for children whose parents are unable to provide them with the care, protection and comfort they need to grow into well-adjusted adults. But when is a guardianship necessary? What are some reasons for temporary guardianship or permanent guardianship of a minor?
There are many reasons to request guardianship of a minor.
Perhaps the child lost both his parents to Covid-19, and as his closest living relative, you feel it is your duty to care for him.
Perhaps the child’s most basic needs of food, shelter and clothing are being neglected because her parent is addicted to drugs, and you would like to care for the child until her parent gets clean.
Perhaps the child is a successful film and television star with a sizable fortune, and you would like the ability manage his financial affairs until he turns 18.
Perhaps the child is at risk of being taken by the Department of Children and Family Services if you, his parent, gets detained or deported for immigration reasons. You want to be proactive in establishing a guardianship.
If it comes to the attention of authorities that a child either does not have a parent to care for them or has an unsuitable parent caring for them, it is possible the child will be placed in foster care, that is unless another suitable adult steps forward to assume responsibility of the child. One way for an adult to do this is through a guardianship.
If you think you have valid reasons for guardianship over a child you know, it is a good idea to discuss your case with an experienced guardianship attorney. Schedule your free consultation with a Keystone guardianship attorney today.
What Is a Probate Guardianship?
In California, legal guardianship is a court order providing an adult who is not the parent of a child with the authority to care for that child and make decisions on their behalf. Guardianships are requested when the child’s biological parents, for whatever reason, are unable to provide them with the care and support they need. Probate guardianships are reserved for children under 18, with an exception for immigrant children seeking special immigrant juvenile status, which would allow them to be under a guardianship until they turn 21.
One of the main reasons for seeking guardianship is that legal guardians have essentially the same rights as a child’s parents, although the full scope of their rights will come down to the type of guardianship they’ve been granted. Guardianships can be either a guardianship of the person or a guardianship of the estate, or they can be both. We go over the meanings of these terms in the below sections.
Clients are often confused about the difference between guardianship and adoption. If you are seeking to permanently assume responsibility of a child, effectively terminating the relations the child has with their biological parents, then you are seeking an adoption, which is not supervised by the court. When a child is adopted, they generally have the same inheritance rights as biological children subject to some limited exceptions. A guardianship, on the other hand, is supervised by the court and only suspends the parental rights of the biological parents. The parents are generally permitted to maintain reasonable access to the child in a guardianship, so long as they do not pose a danger to the child. If the biological parents regain the capacity to care for their child, the court can terminate the guardianship.
If you are unsure whether it is a probate guardianship you are seeking, it is recommended you discuss your matter with a probate attorney.
Permanent Guardianship vs. Temporary Guardianship
Guardianships either can be temporary or permanent, but it is worth noting that no guardianship will actually be permanent. In other words, even permanent guardianships generally expire once the child comes of legal age.
Temporary guardianships are short-term arrangements spanning a specified period of time. Once that time is up, they can either be terminated or extended, or the guardian can request for the arrangement to be made permanent. A temporary guardianship can be appointed for either the minor’s estate or person, or both.
Temporary guardianships of the person are typically sought when immediate intervention is needed in order to protect the minor. For example, if the child’s parents suffer from drug addition or mental illness that prevents them from properly caring for the child, it may be necessary to appoint a temporary guardian of the child’s person in order to protect the child. A temporary guardianship of the estate may be sought when there is a pressing need to have a legal adult manage the finances of the child. For instance, if a child has obtained a large inheritance or is the beneficiary of a personal injury settlement, a guardianship of the estate may be needed before the funds can be released to the child.
Permanent guardianships, in contrast, are intended to remain in place until the child turns 18 years of age.
Guardianship of the Person
A guardian of the person has almost the same responsibilities when managing the child’s daily life that the child’s biological parents have. This means they can make health care decisions on the child’s behalf, as well as maintain full physical and legal custody of the child.
Some of the aspects of a child’s care a guardian of the person is responsible for include:
- Education and any special needs (e.g., enrolling the child in school, ensuring the proper accommodations are made for any mental or physical disabilities)
- Food, shelter and clothing (e.g., ensuring the child is properly nourished, maintaining a safe home environment)
- Emotional and physical growth (e.g., seeking mental health care services for the child, providing guidance to the child as they navigate the different stages of their development)
- Medical and dental care (e.g., ensuring the child is seen by a doctor when they appear sick)
- Safety and protection (e.g., supervising the child’s activities)
While a guardian of the person has many of the same responsibilities as a parent, they also have many of the same liabilities. For example, if a child under a guardianship intentionally causes damage to school property, the guardian may have to pay for repairs since they had been responsible for supervising the child when the incident occurred.
Being a guardian is no walk in the park, as your role is essentially that of a parent. Anyone seeking to become a minor’s guardian of the person should take time to understand the requirements of their role before filing their petition, and if they still have questions, they may want to consider seeking the guidance of a guardianship lawyer.
Guardianship of the Estate
A guardian of the estate is responsible for managing a child’s assets — including their income, property and money — until they turn 18. This type of guardian is far less common than a guardian of the person since it is rare for minors to have substantial assets. One of the main reasons to request guardianship of the estate is because a child has received a large inheritance or earns significant income (e.g., child actors). If the child has a surviving parent, it is likely the court will appoint their parent to the guardian of their estate.
Some of the aspects of a child’s finances a guardian of the estate is responsible for include:
- Managing the child’s income and assets
- Protecting the child’s property
- Making responsible investments on behalf of the child
It is recommended for guardians of the estate to seek the help of a guardianship lawyer to navigate their role since they are a fiduciary and could be held responsible for any financial harm that befalls the child’s estate. Guardians of the estate can generally cover attorney’s fees and costs using funds from the estate.
Who Can Request Guardianship of a Minor?
Probate guardianships are generally requested by a member of the child’s family, a friend who is asking the court to appoint a guardian or by the prospective guardian themselves.
When the court grants an adult guardianship of a child, it is generally because the child either has parents who are unfit to care for them or does not have any living parents. So, it should be no surprise that the adult requesting guardianship of a child should possess the temperament and means to provide the child with a nurturing, safe and stable home environment.
Additionally, legal guardians must be:
- at least 18 years old;
- of sound mind;
- and not incarcerated.
While these are the most basic requirements for bringing a guardianship action, there are also some other factors to consider, such as the child’s religious preference, location and age. As an example, if the child is 3 or 4 years old, they are apt to be very active and may require a guardian with the time, patience and physical fitness to care for them. Similarly, a young child may benefit from a younger guardian who is likely to be alive for the entirety of the child’s youth.
No matter how dire a child’s situation had been with their biological parents, moving them into a new environment with new people and new rules can be traumatic for them, so it is important for anyone seeking guardianship to consider whether they are the best choice for the child. For example, if the child is in their teens, and they have extracurricular activities or sports they participate in as well as a close-knit circle of friends, moving them far away from home could prove detrimental to their happiness and wellbeing.
The most common petitioners for guardianship are usually close relatives of the child or close family friends. But guardians can really be any responsible adult, whether that adult is the child’s teacher, a neighbor or even a sports coach, so long as they have some connection to the minor.
Adults seeking guardianship of a child must remember that only what is best for the child matters. Put simply, an adult cannot become a child’s guardian because they disagree with the parenting style being used; it must be proven that the child will benefit from a guardianship and is in danger without one.
If you have questions or concerns about becoming a child’s legal guardian, a guardianship attorney will be able to provide help.
Are There Alternatives to Guardianship?
A formal guardianship is not always needed for a non-parent to care for a child; less formal approaches are available.
In California, parents can sign a California Parental (Minor Children) Power of Attorney form in front of a notary to give another suitable adult physical custody of the child and the ability to make decisions about the child’s education and health care. While a power of attorney can be a great option for parents who require someone to care for their child for a short period of time, it is not ideal for parents seeking long-term care. Attorneys-in-fact are limited in what they are able to do. For example, most health insurance companies will not allow the attorney-in-fact to place the child on their health insurance plan. To do this, they would have to be the child’s guardian of the person. The upside of a power of attorney is that the parents can terminate it at any time.
For example, if a relative has agreed to care for a child while the child’s parents tend to business abroad for a few months, the parents can execute a power of attorney to empower the relative to make decisions for the child. Without a power of attorney, the child’s school may not allow the relative to sign permission slips or even pick the child up from school. Once the parents return, they can destroy the power of attorney document to terminate it.
If the adult who the parents have appointed to care for their child is a relative, there is another option as well: the Caregiver’s Authorization Affidavit. If the caregiver is a “qualified relative” — relatives who qualify are listed on the back of the form — then they have essentially the same rights as a guardian of the person in seeking medical and mental health care for the child. Non-relatives can also utilize this form, but they will not have the authority to make medical decisions for the child unless they are school-related (e.g., immunizations).
While parents do not have to sign the Caregiver’s Authorization Affidavit for it to be valid, they do have the authority to cancel it at any time.
While these alternatives to guardianship can be a great interim solution, they do not offer the caregiver the same level of authority as a guardian. A guardianship attorney can provide further insight about which option is best for the child in question after discussing your matter with you.
When Is a Guardianship Necessary?
A guardianship may be necessary when a child’s basic needs are not being met by their parents. For example, is the child regularly caught being truant? Do they always appear unbathed? Do they seem malnourished? Are they acting out in harmful ways because they lack of supervision?
While these examples, especially if they are isolated incidents, don’t necessary indicate neglect or abuse at the hands of the child’s parents, they do warrant an investigation into the child’s home environment. It could be as simple as having a frank discussion with the child’s parents about your concerns or speaking directly with the child about what’s going on at home.
Parents can love their children and at the same time lack the capacity to parent them. For children to mature physically, mentally and emotionally, they need security, attention and guidance from a stable and responsible adult. If a parent is not of sound mind and therefore cannot provide the child with the tools they need to grow, that qualifies as a reason to request guardianship.
It is important to keep in mind that a guardianship will be granted only if both parents (given they are alive and reachable) consent to it, if the parents’ rights to the child have been terminated, if the parents have abandoned the child, or if a judge determines that it is in the best interest of the child to remove the child from parental custody.
In this section, we will cover some common scenarios giving rise to probate guardianship proceedings. If any of these scenarios apply to a child you know, don’t wait to get in touch with a guardianship lawyer. Even if you do not wish to be the child’s legal guardian, the lawyer may be able to help petition the court to get another legal guardian appointed for the child.
It is important to note that guardianships, unlike adoptions, can be terminated by the court. So, if a parent proves they are capable of providing their child with the care they need, the court could terminate the guardianship, effectively returning control of the child to their biological parent.
Parents Are Deceased or Out of the Picture
When the parents of a minor die or are not in the picture, another adult will have to step up to care for the child. This adult could be anyone from an adult sibling or family friend to a foster parent. Of course, to make the transition as seamless as possible for the child, the court will always try to place the child with someone they know and trust, but if no one the child knows volunteers to be their guardian, foster care may be necessary. Many parents proactively nominate a guardian through their estate planning documents to assume responsibility of their child in the event they die. An estate and trust attorney can assist you with adding such language to your estate plan.
One of the most common reasons for temporary guardianship is a parent dying or abandoning their child. A close adult acquaintance may request to be a child’s temporary guardian until a permanent arrangement is found for the child.
If a child’s parents have died or are no longer in the picture, it is crucial to act quickly to establish a guardianship. A temporary guardianship is an ideal first step, as it will allow the child to be protected and cared for while the court tries to find a permanent home for the child.
Parents Have Serious Mental or Physical Disabilities
Another common reason to request guardianship is if the parents have grave physical or mental illness.
Perhaps a parent was in a car accident that put them in a coma and the other parent is not in the picture. Perhaps the parent was diagnosed with advanced dementia and can no longer care for themselves, let alone their children. Perhaps the parent is suffering from manic depression, which is causing them to be of unsound mind as well as a danger to themselves and their children. All of these examples count as valid reasons for guardianship.
You might be wondering: How do I know whether to seek a temporary or permanent guardianship? Reasons for temporary guardianship can include providing care to the child of a parent who is likely to regain the capacity to care for their child, or to provide a child with a safe, loving home until a permanent guardian can be appointed.
A permanent guardianship should be established if it does not seem likely that the biological parent will ever be able to provide the child with the care they need. For example, a child may need a permanent guardianship if a parent has been placed in a psychiatric institution after habitually putting their child in harm’s way during schizophrenic episodes.
Parents Have to Go Away for a While
One of the chief reasons for temporary guardianship is the planned absence of a parent for an extended period of time.
Perhaps the parent is in the military and has been called to serve overseas. Perhaps the court has ordered the parent to check into an inpatient rehab for a few months to get help for a substance abuse issue. Perhaps the parent was convicted of a crime and is being sent to prison for a few years.
Depending on the situation, the parent may or may not play a role in having a guardian appointed for their child. For example, a parent who understands they are at risk of being detained or deported on account of immigration issues may take steps to appoint someone they trust to be their child’s temporary guardian. Conversely, if the parent is in prison, they may not have much of a say in who is selected as their child’s legal guardian.
If you are a parent who is expects to be away from your child for an extended period of time, it is recommended you speak with a probate attorney about how to best protect your child during your absence. It is crucial you take this step before you leave.
Parents Have a Drug Addiction
Another common reason to request guardianship is if the parent is suffering from serious substance abuse issues that are negatively affecting the wellbeing of the child.
Perhaps the child is regularly in the presence of dangerous drugs, making the home environment unsafe. Perhaps the child’s basic needs are being neglected because the parent is too intoxicated to care for them. Perhaps the child lacks supervision. Perhaps the parent cannot provide for the child because all their money is spent on their drug habit.
If the parents are willing to take steps to resolve their addictions, the child could be placed under a temporary guardianship that could be terminated once the parents are clean. If the parent does not seem willing to change, has proven incapable of doing so or is too far gone, a permanent guardianship may be the best option for the child.
Parents Have a History of Abuse or Neglect
It is an unfortunate reality that children are often abused or neglected by the very people who are charged with caring for them, their parents. If the abuse or neglect was reported to Child Protective Services, the resulting guardianship case will likely take place in juvenile dependency court, which is different from probate court. In juvenile dependency court, Child Protective Services initiates the action, whereas in probate court, it is generally the prospective guardian.
Whether the child is the subject of a dependency guardianship or probate guardianship, the ultimate goal is to reunite them with their family, given that doing so is possible and safe.
If you are concerned that a child is being abused or neglected, it is potentially a reason to request guardianship. It is crucial you take immediate action to try to remove the child from the situation. You can either report the parents to Child Protective Services, or you can speak with a qualified guardianship attorney about your options. It is important to note that submitting a report with Child Protective Services does not guarantee that the department will initiate legal action.
Parents Are Unable to Financially Provide for Child
Parents may be able to offer their children the love and support they need, but financially come up short. For example, the parent could be a single mother who just graduated high school. She can barely support herself, let alone a child. And to earn more income, she needs to work but since she cannot afford child care, doing so is not an option. Her situation would qualify as a reason for temporary guardianship.
The young mother could temporarily allow another adult to assume responsibility of her child while she attempts to find a job and save money. Once she has the financial means to provide for her child, the court will likely terminate the guardianship.
Given that a guardianship only suspends parental rights and doesn’t actually terminate them, it can be a great option for parents who require some time to get financially stable but wish to be in their children’s lives while they do. There is also the possibility that a guardianship may not be needed at all if a parent or relative agrees to provide for and care for the child while the parent works toward building financial stability.
If you are unsure about whether a guardianship is right for a child in your life, speaking with a guardianship attorney should offer some clarity.
Child Has Earned or Inherited Large Sums of Money or Property
When a loved one dies, their will or trust may leave a large portion of their assets to their minor child. A child cannot generally access such an inheritance until they turn 18 (or perhaps even older if the document has conditions, such as the child completing college) so they will need a responsible, financially literate adult to manage their finances until they come of age. This person is known as a guardian of the estate. A child who has earned substantial income may also require a guardian of the estate to help manage their money.
The guardian of the estate’s role will be strictly limited to managing the child’s finances, that is unless the guardian of the estate is also the child’s guardian of the person. Often, a child’s guardian of the estate is their surviving parent. Other times, it is a professional fiduciary.
Most children only need a guardian of the person, since they generally do not have enough assets to warrant having a guardian of the estate. A guardianship lawyer can provide further clarification about the type of guardianship a child needs.
When Is a Guardianship Necessary? Keystone’s Guardianship Attorneys Can Provide Guidance
What are some reasons to request guardianship? How will the court verify your reasons for seeking guardianship? Do you need a temporary guardianship or permanent guardianship? Navigating guardianships can be difficult since a child’s wellbeing is at stake, and the decisions made now could have lasting consequences for the child. What can seem like a beneficial arrangement to you could actually prove detrimental to a child’s healthy development. That is why it is crucial to speak with an experienced guardianship attorney before initiating any proceedings. A qualified guardianship attorney will be able to review your options with you to help you determine the best way to protect the child in question. Call Keystone Law Group today to request your free consultation.
