By executing a guardianship, you are creating a legal contract with the person or persons who you trust to become the parents of your minor children in case something should happen to you. Proper designation of a guardian in a document separate from a will can avoid court oversight, scrutiny and usually public knowledge of what your child may be receiving from you in the event of your incapacity or death. It should also allow the authorities (ex., police or firemen) to give immediate custody and care for your children to your designated guardian(s) without court involvement in the event you are involved in an accident or other emergency.
The most difficult part of creating a guardianship is choosing who the guardian(s) will be. You need to think carefully about who will care for your children the best, including who will have the time and resources to do so. You should also consider where the person lives and whether that person could be present to take custody of the children in case of a sudden event.
There are two types of guardians to appoint in a guardianship: a guardian of the person and a guardian of the estate. This can be the same person, or it can be completely different people. Continue reading for information on what the duties of each type of guardian are.
The guardian of the person of a child has the care, custody, and control of the child. As guardian, you are responsible for providing for food, clothing, shelter, education, and all the medical and dental needs of the child. You must provide for the safety, protection, and physical and emotional growth of the child. Like a parent, you should maintain close contact with the child’s school and physician. Raising children is not easy. You should become familiar with community resources that can assist both you and the child. You may get help and information from a support group for guardians.
As guardian of the person of the child, you have full legal and physical custody of the child and are responsible for all decisions relating to the child.
As guardian of the person of the child, you are responsible for the child’s education. You determine where the child should attend school. As the child’s advocate within the school system, you should attend conferences and play an active role in the child’s education. For younger children, you may want to consider enrolling the child in Head Start or other similar programs. For older children, you should consider their future educational needs such as college or a specialized school. You must assist the child in obtaining services if the child has special educational needs. You should help the child in setting and attaining his or her educational goals.
As guardian, you have the right to determine where the child lives. The child normally will live with you, but when it is necessary, you are allowed to make other arrangements if they are in the best interest of the child.
As guardian, you are responsible for meeting the physical and medical needs of the child, the same as would be required of their natural parents. Additionally, you are responsible for counseling and other necessary mental health services for the child. A variety of counseling services is available to help children. As guardian, you are expected to secure necessary services, cooperate with counselors, and maintain regular contacts with the child’s treatment providers.
There are agencies in each county that may be helpful in meeting the specific needs of children who come from conflicted, troubled, or deprived environments. If the child has special needs, you must strive to meet those needs or secure appropriate services. Some children may have physical or learning disabilities. Other children come from abusive homes or have been victims of abuse. Counseling and other services may be necessary to assist a child who has special needs or has had unpleasant life experiences.
The guardian may consent to a minor’s enlistment in the armed services. If the minor enters into active duty with the armed forces, the minor becomes emancipated under California law.
For the minor to marry, the guardian and the court must give permission. If the minor enters a valid marriage, the minor becomes emancipated under California law.
A guardian, like a parent, is liable for the harm and damages caused by the willful misconduct of a child. There are special rules concerning harm caused by the use of a firearm. If you are concerned about your possible liability, you should consult an attorney.
A guardianship of the person automatically ends when the child reaches the age of 18, is adopted, marries, is emancipated by court order, enters military service, or dies. If none of these events has occurred, the child or the guardian may petition the court for termination of guardianship. But it must be shown that the guardianship is no longer necessary or that termination of the guardianship is in the child’s best interest.
The money and other assets of the child are called the child’s “estate.” Appointment as guardian of a child’s estate is a solemn matter. It is taken very seriously by the court. The guardian of the estate is required to manage the child’s funds, collect and make an inventory of the assets, keep accurate financial records, and regularly file financial accountings with the court. The use of an attorney for legal advice in managing the estate is recommended.
As guardian of the estate, you must manage the child’s assets with the care of a prudent person dealing with someone else’s property. This means that you must be cautious and may not make speculative or risky investments.
As guardian of the estate, you must keep the money and property of the child’s estate separate from everyone else’s, including your own. When you open a bank account for the estate, the account name must indicate that it is a guardianship account and not your personal account. You should use the child’s Social Security number when opening estate accounts. You should never deposit estate funds in your personal account or otherwise mix them with your own funds or anyone else’s funds, even for brief periods. Securities in the estate must be held in a name that shows that they are estate property and not your personal property.
Except for checking accounts intended for ordinary expenses, you should place estate funds in interest-bearing accounts. You may deposit estate funds in insured accounts in federally insured financial institutions, but you should not put more than $100,000 in any single institution. You should consult with an attorney before making other kinds of investments.
As guardian of the estate, you will have other restrictions on your authority to deal with estate assets. Without prior order of the court, you may not pay fees to yourself or your attorney. You may not make a gift of estate assets to anyone. You may not borrow money from the estate. You may not use estate funds to purchase real property without prior court order.
If you do not obtain the court’s permission to spend estate funds, you may be compelled to reimburse the estate from your own personal funds and may be removed as guardian. You should consult with an attorney concerning the legal requirements relating to sales, leases, mortgages, and investment of estate property.
If the child of whose estate you are the guardian has a living parent or if that child receives assets or is entitled to support from another source, you must obtain court approval before using guardianship assets for the child’s support, maintenance, or education. You must file a petition or include a request for approval in the original petition, and set forth which exceptional circumstances justify any use of guardianship assets for the child’s support. The court ordinarily will grant such a petition for only a limited period of time, usually not more than one year, and only for specific and limited purposes.
As guardian of the estate, you must locate, take possession of, and protect the child’s income and assets that will be administered in the estate. You must change the ownership of all assets into the guardianship estate’s name. For real estate, you should record a copy of your Letters of Guardianship with the county recorder in each county where the child owns real property.
Determine the value of the property: As guardian of the estate, you must arrange to have a court-appointed referee determine the value of the estate property unless the appointment is waived by the court. You, rather than the referee, must determine the value of certain “cash items.” An attorney can advise you about how to do this.
File an inventory and appraisal: As guardian of the estate, you must file an inventory and appraisal within 90 days after your appointment. You may be required to return to court 90 days after your appointment as guardian of the estate, to ensure that you have properly filed the inventory and appraisal.
As guardian of the estate, you should make sure that there is appropriate and sufficient insurance covering the assets and risks of the estate. You should maintain the insurance in force throughout the entire period of the guardianship or until the insured asset is sold.
As guardian of the estate, you must keep complete, accurate records of each financial transaction affecting the estate. The checkbook for the guardianship checking account is your indispensable tool for keeping records of income and expenditures. You should also keep receipts for all purchases. Record keeping is critical because you will have to prepare an accounting of all money and property you have received, what you have spent, the date of each transaction, and its purpose. You will also have to be able to describe in detail what is left after you have paid the estate’s expenses.
As guardian of the estate, you must file a petition requesting that the court review and approve your accounting one year after your appointment and at least every two years after that. The court may ask that you justify some or all expenditures. You should have receipts and other documents available for the court’s review, if requested. If you do not file your accounting as required, the court will order you to do so. You may be removed as guardian for failure to file an accounting.
Format: As guardian of the estate, you must comply with all state and local rules when filing your accounting. A particular format is specified in the Probate Code, which you must follow when you present your account to the court. You should check local rules for any special local requirements.
Legal advice: An attorney can advise you and help you prepare your inventories, accountings, and petitions to the court. If you have any questions, you should consult with an attorney.