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Guardianship California

Guardianship is a legal process where a person, other than the parent, is given legal authority over the child’s person or property. The legal process can only be executed in Probate Court and is not related to Family Court or a Juvenile Court action. Depending on the circumstances, there are two different types of guardianships you can apply for in probate court, these include:

Guardianship of the Child’s Person

If the child is living with an adult who is not their parent for various reasons, then the adult must be able to make decisions on behalf of the child. This can be accomplished by filing for guardianship through probate. Once the court permits guardianship, the adult will have the same obligations as a custodial parent, which includes being responsible for their care.That includes the child’s:

• Protection and safety
• Education and if they have any special needs that must be met
• Medical care including dental care
• Emotional and physical growth and development
• Shelter, food, and clothing

Guardianship of the Child’s Estate

In some cases, the child may simply need someone to safe-keep their finances until they reach legal age. A guardian of the estate can manage the child’s money, income if they have any, and any other property the child may inherit until they turn 18. Usually, the surviving parent will be appointed as the guardian of the child’s estate. In some cases, the same person will be appointed as guardian of the child’s person and their estate.

Guardianship vs. Adoption California

You may have heard the terms “guardianship” and “adoption” used interchangeably in the past. However, both terms have different and distinct meanings from one another. In a guardianship, the court simply bestows the guardian legal custody of the child. They are not adopting the child but taking legal authority over them until the court terminates the guardianship, finds a new guardian, or the child reaches the age of 18.

Under a guardianship, the child can be returned to the parents if their situation improves and they are able to show they can care for the child. An official adoption, on the other hand, will mean the biological parents will permanently lose parental rights to the child indefinitely. In addition, guardianships are supervised by probate court whereas adoptions are not supervised by any court once they’re finalized.

Obtaining Guardianship in California

In order to become a child’s legal guardian, you’ll first have to file the appropriate papers with probate court. You’ll also be required to serve the petition and notice of the hearing to the parents if they’re alive and well at least 15 days before any court date has been scheduled. Once you’ve filled out your forms and filed them with the appropriate court clerk, a Court Investigator (CI) will be assigned to your case.

The CI will then conduct a thorough interview for both you and the child. If the parents of the child are alive and able to communicate clearly, then the CI will also ask them various questions as well. Based on these conversations, the Court Investigator will make a recommendation to the judge.

Before the CI can recommend you as a guardian, they must know if there’s a valid need for the guardianship or if the child can simply continue to live with their parents. When answering this question, the CI will examine where the child currently lives, where the child goes to school presently, your family dynamics, any health-care issues you may have, and if the parents are able to visit.

The CI will also set up a formal home study where they will:

• Visit the home in which you intend to live with the child
• Review documents related to the child such as school or medical records
• Conduct a background check on you and any adults living in the home for any record of child abuse or neglect

Court Investigators will only examine your case if you’re a relative to the child. If you’re not related to the child, then probate court will refer your case to the Social Services Agency who will then conduct their own investigation.

Once the inquiries are finalized, the court will schedule a hearing for a judge to review your case and determine if you’re fit to be the legal guardian of the child. The court operates in the child’s best interests, so if findings from the investigation reveal you’re not a fit guardian they will not establish guardianship.

Is Guardianship Part of Estate Planning?

As a parent, you want to ensure your child is cared for and protected until adulthood. You don’t want to have to worry about your friends or family struggling to petition for guardianship if you become incapacitated or die unexpectedly. The process is complicated and can leave your child in limbo for weeks right after they’ve experienced the trauma of losing a parent.

Thankfully, you can avoid this scenario entirely by taking a proactive approach with your estate plan. You can appoint one or more guardians for your child by including a Designation of Guardian in your will or living trust. If needed, you can even designate alternative guardians in the event your first choice is unable to take on the responsibility.  If you have minor children, we highly recommend crafting an estate plan that incorporates nomination of guardians for minor children. You want to be in total control and choose the guardians who will raise your kids in the event of death or incapacity.

Don’t leave this decision up to a probate judge and/or social worker. The nomination of guardians is perhaps the most compelling reason to engage in estate planning when you have minor children. That way you can ensure your assets can be passed onto your child without any intervention or supervision from the probate court and they’ll have a guardian already appointed for them.

Additional Resources

California Guardianship Pamphlet
Visit the official website for the California Courts to learn more about guardianship of children in probate court. Access the pamphlet to learn general definitions, how to obtain guardianship in California, the duties of a guardian, and more.

Guardianship Laws in California
Visit the official website for the California Statutes to read about their rules surrounding guardianships through probate. Access the site to read the statutory language surrounding how to nominate a guardian, how the guardian is appointed, non-relative guardianship procedures, and other valuable information.

Probate Lawyers for Guardianship in California | Ventura

If you believe your family circumstances or the circumstances of a minor child in your care warrant a petition for guardianship of the child, then call Botti & Morison. Our team of skilled and experienced California probate lawyers can assist you with every step of the process including the paperwork, court investigation, and eventual hearing. Get answers to all your legal questions as soon as possible by calling our office at (877) 585-1885.

Botti & Morison accepts clients throughout the state of California including San Luis Obispo County, Ventura County, Kern County, Los Angeles County, and Santa Barbara County.

Guardianship Attorney in Ventura County, Los Angeles County and Central California

For many, being tasked with the overreaching responsibility of handling all the affairs of a loved one is incredibly overwhelming. Our knowledgeable and skilled legal team at Botti & Morison are committed to simplifying the process. That way you can concentrate on what matters and can rest assured all the heavy lifting for the estate is done properly. Plus, our attorneys have over 90 years of combined experience with probate administration and estate planning. Their knowledge and extensive resources will be incredibly valuable if an estate-related issue occurs.