Guardianship: what is it and how does it work?

Guardianship is a court process by which a person other than a parent is given custody of a child or authority over a child's property.Appointment as guardian requires the filing of a petition and approval by the court. There are two types of guardianship that may be granted. If the court establishes a probate guardianship, the guardianship may be: • A guardianship of the person of the child (custody); • A guardianship of the child's "estate" (property); or • Both The first type is guardianship of the person. The probate court may appoint a guardian of the person for a child when no parent is available to meet the needs of the child because of the parents' death, incapacity, abandonment, military obligations or other reasons. 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 always 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. Also as guardian of the child, you have full legal and physical custody and are responsible for all decisions relating to the child. The child's parents can no longer make decisions for the child while there is a guardianship. The parents' rights are suspended-not terminated-as long as a guardian is appointed for a minor. If you wish, you may ask the parents for their opinions about matters relating to the child. The second type of guardianship is that of the estate. If the court appoints you as guardian of the child's estate, you will have additional duties and obligations. 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. There are other things to consider if appointment of guardianship is granted for the minor child's estate. These include: Insurance coverage - 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. Record Keeping and Accounting - 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. Accountings - 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. 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. Inventory of Estate Property - Locate the estate's property, determine the value of the property and file an inventory and appraisal of all the assets. And lastly, some alternatives to guardianship that you should consider if guardianship is not feasible are private agreements, Caregiver's Authorization Affidavits and/or other financial arrangements. Private agreements can be made with the child's parents to provide care for the child. A written agreement can be made showing that you have "custody" of the child with the parents' consent. Normally it is also beneficial to secure a medical release for emergencies, especially if a parent is not readily available. Note: The parents may revoke this type of agreement at any time. With a Caregiver's Authorization Affidavit, the California Family Code allows a person who is related to the child to fill out a Caregiver's Authorization Affidavit. The affidavit normally allows that person, as a caregiver, to enroll the child in school and secure medical treatment for the child. Note: The parents may revoke your authority or override your decision under this type of agreement at any time. And with other financial arrangements, the law allows parents to make other financial arrangements for property inherited by or given to their children. For instance, a blocked account and other protective measures can be used without the appointment of a guardian of the estate. Note: Some financial institutions, insurance companies and courts require the appointment of a guardian of the estate before they will release funds on behalf of a minor. So if guardianship is something that you are contemplating, it is always a good idea to seek legal counsel to explore all your options carefully and become fully informed before proceeding forward. The purpose of this column is to provide general information on the law, which is subject to change. It is not legal advice. Consult a lawyer if you have a specific legal problem.

********** Published: September 9, 2010 - Volume 9 - Issue 21