What is a guardianship?
…and why does it matter?
The only thing that is more devastating, and more disruptive, to a family as the loss of a parent, is the unexpected loss of both. It is likely the worst experience a child can go through.
If you die before your child reaches adulthood, who will have custody over her or him?
In California, a person under the age of 18 years is considered a minor. All minors must have an adult who is legally responsible for them. If your child loses both parents while still a minor, the court will appoint a guardian, whether or not you have nominated someone. Therefore, it’s important that you protect your minor child by naming someone that you trust will raise them in a stable environment with values similar to your own.
The first thing to recognize is that there are two types of guardianships: the “guardian of the person,” and the “guardian of the estate.” There are many factors that should be considered, some of which are discussed below, when nominating a guardian for your child, and your nominee for your child’s person does not have to be the same nominee for your child’s estate.
A testamentary guardian is a guardian nominated by a parent through her or his last will. The following discussion deals only with testamentary guardianships.
Guardian of the Person
Put simply, a probate guardianship of the person is a court order giving someone other than a parent legal custody of a minor child.
In a guardianship of the person, the guardian has the same responsibilities to care for the child as a parent would. This means that the guardian has full legal and physical custody of the child and can make all of the decisions about the physical care of the child that a parent could make. A guardian can be anyone: relatives, friends of the family, or other persons suitable to raise the child can ask to be legal guardians.
A guardian of the person is responsible for the child’s care, including:
- Determining where the child will live;
- Ensuring that the child is properly fed, clothed, and sheltered;
- Ensuring the child’s safety and protection;
- Supervising the child’s conduct;
- Ensuring that the child is enrolled in school, including taking care of any special needs; and
- Ensuring that the child has proper medical and dental care.
There is no legal substitute for guardianship of the person. If both parents are deceased or otherwise unavailable (for example, if they are both incapacitated), a guardian must be appointed by the court to take custody of the child and to provide for the child’s care, control, and education.
Guardian of the Estate
A guardianship of the estate is set up to manage and control a minor child’s income, money, and other property until the child reaches the age of 18 years. A guardian of the estate may be required if the owns or receives valuable property, such as inheriting a home or large amount of money.
A guardian of the estate has a duty to:
- Carefully manage the child’s estate property and money;
- Keep separate the child’s estate property from other property, including the guardian’s own personal assets;
- Avoid conflicts of interest, including;
- Using or dealing with the child’s estate property for the guardian’s personal profit.
- Taking part in any transaction in which the guardian has an interest adverse to the child’s.
- Maintain a fiduciary relationship with the child by retaining management and control of the child’s assets for the child’s benefit until the child reaches 18 years of age.
A guardianship of the estate is not needed when:
- The child only owns inexpensive toys and clothing; or
- The child receives Social Security benefits or TANF/CalWorks.
Death of One Parent
Upon the death of one parent, the surviving parent will normally have custody of the child. Therefore, a common arrangement is for each parent to nominate a guardian of the person their minor child (normally the same nominees are named in each parent’s will) to take effect only if the other parent does not survive. One parent may make the nomination only if the other parent either joins in that nomination, consents to that nomination, is dead, lacks legal capacity, or is in the category of parent whose consent is not required fro an adoption as set out in Probate Code section 1500.
If you are married to, or on good terms with your child’s other parent, discuss whom you are naming as guardian in your will. If the wills do not name the same person, the judge will determine which guardian appointment is in the best interest of your child based on evidence given in court hearings.
Even if you and your child’s other parent cannot agree, it is still good practice to name your chosen guardian in your will. It is better to have two selections from which a judge can choose, than to have a screaming match between those who feel they are best fit for the job, or worse yet having no options at all.
Death of Both Parents
Although the death of both parents may seem, and may even be, improbable, the number of auto accidents, along with the occurrence of natural and man-made disasters in which both parents die are grim examples of what is possible. However slight the chance, it is enough to merit making the nomination. If you are a parent of a minor child, now is the time to think about nominating a guardian.
If a will (or other valid nominating document) has not been properly executed at the time of both parents’ death while your child is still a minor, the court will still appoint one. However, the decision will be made without any influence or knowledge of your wishes.
Your failure to nominate your choice may also lead to feuds between family members arguing over who the “right person” is, instead of working together towards what should be the common goal of, “what is in the best interest of the child.” The last thing a bereaving child needs is for the adults in their lives to be fighting.
Understanding the Guardianship Process
It is important to understand that your nomination of a guardian is not binding on a court, and, nominating a guardian in a will (or other nominating document) does not alone create a guardianship.
For a person to be appointed as guardian of your child, the person you nominate will need to file a Petition for Appointment of Guardian with the Probate Court, notify certain persons and agencies, and attend a court hearing. Others will also have the opportunity to petition the court for guardianship. The court will look to the welfare and best interest of your child in determining who should be appointed.
Nominating a guardian for your child is a clear indication to the courts as to who you believe is best able to, and moreover who you wish to, act as your child’s guardian. Although the court is not required to appoint the guardian you choose, your nomination carries great weight and will help influence the court’s decision. The court will normally appoint your nomination, so long as doing so is not against the best interest of your child.
Nominating a guardian in your will (or other nominating document) can have many benefits including the following:
- Reducing delay in appointing a guardian for your child;
- Helping provide your child with a sense of continuity and stability;
- Sparing your child the anguish of a family dispute over who will be her or his guardian;
- Allowing you to broaden or limit the guardian’s powers to care for your child; and
- Providing you with peace of mind knowing you have a plan in place for the care of your child should the worst happen.
How Do I Choose Whom to Nominate?
Choosing your child’s guardian is likely the toughest and most significant decision you’ll ever make. The mere thought of someone other than you raising your child is distressing. You may never be fully comfortable with your choice, because no one will do as good a job raising your child as you. Despite all the reasons to put it off, and however difficult it may be, nominating a guardian is a crucial step every parent should take.
There are many important factors to consider when choosing whom to nominate. To help get you started, some of these factors are discussed below:
- You and your child should have confidence in the proposed nominee, and the nominee should have a genuine interest in your child’s welfare through a familial or personal friendship with your child.
- Although age does not determine a person’s fitness to be a guardia
n, you should consider whether the nominee has the necessary maturity, experience, temperament, patience, and energy to undertake the responsibilities of a guardian.
- Any potential problems between your child and the nominee’s own children should be considered.
- Your nominee should have some understanding of the emotional problems of c
hildren who have lost one or both parents, or the nominee should be willing and able to obtain skilled guidance.
- Since the nominee will have close contact with and great influence over your child, the nominee should be stable and have integrity.
- Children who have lost their parents obtain a sense of security and continuity from remaining with their brothers and sisters. If you have more than one child, will your nominee be willing and able to assume the care of all of your children?
- Will your nominee be willing and able to give your child the same financial, social, moral, and religious upbringing that you would have provided?
- Your nominee should have no conflicts of interest with your child.
- If you will not be able to provide sufficient funds to cover your child’s care throughout the period of guardianship, is the nominee in a financial position to meet the increased expe
nses of the addition of your child to the nominee’s household?
Ideally, a wide range of desirable persons to choose from exist. However, as a practical matter, your choice may be limited by the fact that some choices may be unable or unwilling to accept the responsibility. Because of this, it is wise to appoint alternate choices and to discuss your decisions with your nominees to confirm whether they are willing to take on such a critical role.
I’m Not Dying Soon,
Is Nominating a Guardian Really Necessary?
“I don’t even want to think about it.”
Death is a difficult topic for most of us. Many of us tend to shut down at the mere mention of the subject, preferring to avoid facing the thought of our mortality. Although we can try our best to wish it away, the harsh reality is that death can come at any time, and it is rarely expected.
Despite our inability to predict what will happen, we can hope for the best and do our best to prepare for the worst. It is better to have a plan in place and not need it, than to not have a plan in place and have no say in the matter. Remember, your relatives might disagree on who is best fit for the job, and a court might appoint someone you would have never chosen.
Although difficult to confront and to deal with, contemplating who will care for your children if both parents are unable to is of great importance, and doing so may provide you peace of mind in knowing your child has been provided for with just a little bit of advanced planning.