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Guardianships

Guardianship is a legal relationship between two parties, a guardian who is alluded to be the protector and a protected person who can either be a child or an adult. Guardianship can be bestowed upon a minor child, an incapacitated adult or an estate thus giving rise to three types of guardianship. Guardianship of a minor doesn’t truncate the rights of the minor’s parents, instead it confers the same parental rights temporarily to a guardian. Similarly, guardianship on an incapacitated adult doesn’t cut off their rights but it can encroach on them. Guardianship of an estate that involves children is awarded on a temporary basis, but can vary when it comes to adults.

Understanding Guardianship of a Minor in California

When an individual who is not the child’s biological parent is granted the guardianship of a minor, it means that he or she is given temporary custody of the child or is responsible for the child’s wellbeing as well as the management of the child’s estate or any other valuable property. Therefore, once a guardian is granted custody of the child, he or she will be in charge of the child’s education, health insurance cover and all the legal rights related to the custody orders.

Furthermore, additional responsibilities that promote the safety and development of the child are also attached to the guardianship. This includes issues such as clothing, food, shelter, safety, medical care, education, physical and emotional support among other things that promote a minor’s wellbeing.

Necessity of Guardianship of a Minor in California

If the biological parents of a minor are unable or unwilling to take care of the child, then guardianship can be initiated to protect the best interests of the child, and this can be requested by the parents or the court. Typically, a guardian may be appointed when one or both parents are faced with the following circumstances:

  • When a parent has a serious illness that affects them either physically or mentally.
  • A parent is enrolled in a rehabilitation program as a result of their unlawful behavior or drugs and substance abuse
  • When the parent of the minor is sent to an international assignment through the military
  • When a parent is serving a prison sentence or jail time
  • If a parent has a history of violence
  • When the parent is addicted to drug and alcohol abuse, which causes him or her to neglect their duties to the child
  • When a parent does not promote the best interests of the child
  • In case of any other factor that may hinder the parent’s ability or willingness to care for the child

Differences between Guardianship of a Minor and Adoption Minor

There is a vast difference between guardianship and adoption in California. Adoption involves total dissolution of parental rights of the biological parents. This is different from guardianship of the child since Birth parents still have their parental rights and a guardian is awarded a portion of the rights on a temporary basis.  Although a guardian can be awarded custody of the child, their rights are not quite the same as those that biological parents have. An adoptive parent receives all the rights and this means that the biological parent will have no role to play in the child’s life from that point on.

In the case of guardianship, the birth parents can still have contact with the child and when the court deems it to be in the best interest of the child, then the guardianship rights can be reversed. The biological parents can then regain their full parental rights. It’s very rare for an adoption to be reversed and when the final adoption papers are signed, the birth parents relinquish their rights to spend time with the child. When the child turns 18 years, the guardianship comes to an end if the court’s decision was not reversed at an earlier date. This is not the case with adoption as the child continues to be part of the family.

Guardianship is usually put under watch by the court. In some cases, are required to update the court on the proceedings of the guardianship and how the child is coping up with the new family. In adoption, once the grace period set for supervision by the court elapses then the court backs away and the family is left to lead their life.

Guardianship of an Incapacitated Adult

The whole concept of adult guardianship is protecting numerous rights of the adult and having a guardian that can help in making critical decisions. It’s upon the discretion of the court to appoint a guardian if necessary, and in most cases, it’s usually a family member, a friend or any person that the court chooses. Adults are considered to be in need of guardians when they can no longer make sound decisions touching on their own person and their property. Guardianship to an adult can also be influenced by an overly trusting person, prone to fraud or credulous to external influence.

Guardians are granted various rights and responsibilities, but they vary from one person to another, depending on the specific person. Some of the duties and responsibilities include:

  • Providing shelter or choosing where the protected adult will live
  • Approving and supervising medical treatment for the incapacitated adult
  • Managing financial matters of the protected, including paying for expenses and debts
  • Deciding for the protected person on end of life matters and care
  • Approving and supervising non-medical needs of the protected person, like mental health care and education
  • Promoting and safeguarding the protected person’s rights and listening to his or her opinions
  • Any other duties and responsibilities that may be included in the court order.

Just like in guardianship of a minor, the guardian of an adult is also supposed to give the court periodic update of the protected adult and this may also include suggestions that may positively impact the continued care of the adult and their wellbeing.

Guardianship of the Estate

When one is appointed as a guardian of an estate then they are in charge of the minor’s investments, money, income, or any other property until the child reaches 18 years, which is considered to be the age of majority. This situation arises when the child inherits the estate from parents who are absent or dead.

Incapacitated adults can also receive guardianship when they possess property that they have earned or inherited, which is referred to as an estate. Legally, children and incapacitated are not allowed to manage their own estates, and this is usually the primary reason for the appointment of a guardian. In most cases, guardianship of an estate is usually temporary. When it involves a minor child, he or she can take back the ownership and responsibility of their own estate when they attain majority age- 18 years. Guardianship of an estate may also be temporary if it involves an incapacitated, especially if their incapacitation was as a result if a health condition.

Estate guardians have a wide range of financial responsibilities including;

  • Managing money and bank accounts
  • Paying bills on behalf of the protected person
  • Deciding on investment matters
  • Managing expenditure and income
  • Obtaining court orders concerning the sale of major assets and property appraisal
  • Updating the court on progress that has been made involving the estate and reasoning behind decision

In most cases, a guardian is appointed when an individual inherits something of high value. If you believe that a child needs a guardian for his or her estate, contact a San Diego guardianship attorney to discuss your options.

California Probate Code Section 1600-1602- Termination of a Guardianship

Automatic Termination

Automatic termination of a legal guardianship can be affected in the event of:

  • A child attaining the age of majority as set by California law, which is 18 years-old
  • Death of a child before attaining majority age
  • Adoption of the child, marriage, joining the military or emancipation by a court order. This is a type of court order that declares a child to be an adult.

Court Order Termination of Guardianship.

A petition can be filed to a family court that was involved in appointing the guardian by a parent or any other interested party seeking termination of the guardianship. The parties that are allowed to file for such a petition are the biological parents, the appointed guardian, or the child, if he or she is 12 years old or older.

Once a petition for termination of guardianship has been filed then a hearing will be scheduled, and the notice given to all parties involved. If the court decides that it is in the best interest of the child that the guardianship is terminated, then a new guardian will be appointed by the court.

Factors Considered in Termination of a Guardianship by the Court

  • Parent requests termination: A parent who wants to live with their child again must show that they have stable source of income, a stable and conducive place to live, can take care of the child as required by the law, has been sufficiently rehabilitated
  • Best interest of the child. The party making a request to the court must prove that the termination of the existing guardianship is in the best interest of the child.
  • Request by the child: A child above twelve years has the right to decide where to live and this means that they can choose that they don’t want to live with the guardian.

Who qualifies to be a Guardian?

According to Californian Probate Code 1510, it’s upon the discretion of the court to appoint the legal guardian of child, who can be a relative or any other person fit to take up the role. However, when making these decisions, the court must consider the best interest of the child under California Probate Code 1610.

Nomination by Parent(s)

A parent or parents may nominate a guardian as provided under California Probate Code 1500. Parental nomination is not always required, but courts will give due considerations to the suggestions provided by parents.

Nomination by the Child

As stated earlier, a child who is 12 or older can petition the court for a change of guardianship. The child also has the right to nominate a particular guardian. The child’s nomination will be given due consideration, but the court will have to evaluate the competence and suitability of the suggested guardian.

Testamentary Guardianship.

This is a form of guardianship that involves nomination by a parent through testament or will. However, the court is not limited to that nomination if it finds the appointment of that person will not be in the best interest of the child.

Factors Considered When Appointing a Guardian

There are two elements that must be met for a guardianship to be established. First, an evaluation must be carried out by the court and if it finds out that granting custody to a biological parent would be detrimental to the child, a guardian can be appointed.  Second, the guardian being granted the rights has to be one that will serve and promote the best interest of the child. Once these two conditions have been met then a guardian can be appointed to take care of the child.

The circumstances for guardianship must be affecting both biological parents that is the mother and the father of the child in question. If any of it affects only one parent, then the remaining parent is still capable of taking care of the child thus guardianship cannot be considered unless it’s in the best interest of the court that it is granted.

It is worth noting that, if only one parent is faced with a situation that would hinder their ability to provide care for the child, a guardianship may not be granted if the other parent is willing and able to care for the child. Also, for custody to be granted to the parent, it should be established that he or she will serve the best interest of the child.

Contact Us for Assistance

Being appointed as a guardian is not an easy task. It comes with many legal responsibilities that you must have an in-depth understanding of. Also, giving your child away to another person can be an emotional process and this makes it easy for anyone to make mistakes that can affect the child’s wellbeing. If you want to leave your child in a guardianship setting or you’ve been appointed as a guardian, San Diego Family Law Attorney can help. For a free, no obligation consultation with one of our skilled and experienced guardianship attorneys, call us at 619-610-7425 or fill out our online contact form.

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