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Frequently Asked Questions About Guardianship

 

What is a probate guardianship ?

There are two kinds of guardianships in California.  If Child Protective Services (CPS) is involved, the case is generally a "juvenile court guardianship." The other type of guardianship cases are in probate court and are referred to as "probate guardianships."  A guardianship is not the same as an adoption.

Probate guardianship cases usually are brought by the person who wants to be appointed guardian.  If appropriate, the judge may order someone other than the child’s parent to:

  • Have custody of the child; or
  • Manage the child's property (called "estate"); or
  • Both.

What is a Guardianship of the Person?

A probate guardianship of the person is set up because a child is living with an adult who is not the child’s parent, and the adult needs a court order to make decisions on behalf of the child. A guardianship of the person may be needed when, no matter how much parents love their child, they are not able to parent. Maybe one or both parents:

  • Have a serious physical or mental illness;
  • Are in the military and have to go overseas;
  • Have to go to a rehab program for a while;
  • Are going to jail for a while;
  • Have a drug or alcohol abuse problem;
  • Have a history of being abusive; or
  • Cannot take care of their child for some other reason.

 

What does a guardian of the person do?

Guardians of the person have the same responsibilities to care for the child as a parent would. That means that you, as guardian, would have full legal and physical custody of the child and can make all the decisions about his or her physical care that a parent would make. Essentially, as guardian, you are responsible for the child's care, including the child's:

  • Food, clothing and shelter
  • Safety and protection
  • Physical and emotional growth
  • Medical and dental care
  • Education and any special needs

 

when is a guardian of the estate needed and what do they do?

A guardianship of the estate is set up so that someone can manage a child's income, money, or other property until the child turns 18. Most often, a guardian of the estate is needed because the child has inherited money or assets from a parent or other relative. In most cases, the court appoints the surviving parent to be the guardian of the child's estate.  Regardless of who is appointed, the guardian of the estate must:

  • Manage the child's money;
  • Make smart investments; and
  • Manage the child's property carefully.

You generally do not need a guardianship of the estate if the child only owns inexpensive toys and clothing or the child receives social security benefits or TANF/CalWorks (welfare).

 

who can be guardian?

A guardian can be anyone: relatives, friends of the family, or other people suitable to raise the child can ask to be legal guardians.  The judge will look at what is in the best interest of the child to make sure the child is raised in a safe, stable, and loving environment.  In some cases the same person can be the guardian of the person and of the estate. In other cases, the court will appoint two different people.