Guardianship is when a court orders someone other than the
child’s parent to:
* Have custody of the child; or
Manage the child's property (called "estate"); or
The information in
this section is about probate guardianships. These cases are brought by the
person seeking to be appointed guardian or by someone else in the family asking
the court to appoint a guardian. If custody of the minor was awarded to a
non-parent through the juvenile dependency court, this section does NOT
If Child Protective Services (CPS) is
involved in your case, you probably have to go to the juvenile court to find
out what you can do.
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. Generally, probate guardianships are for
children under 18. In the case of immigrant youth who are seeking special
immigrant juvenile status, , the law allows a guardianship of the person to be
requested (or extended) for a young person who is already 18 but still under
A guardianship is
not the same as an adoption. Here are some differences:
have parental rights. They can ask for reasonable contact with the
child.The court can
end a guardianship if the parents become able to take care of the child.Guardians can
be supervised by the court.
rights are permanently ended.The legal
relationship with the adoptive parents is permanent and is exactly the
same as a birth family.An adopted
child inherits from his or her adoptive parents, just as a birth child
families are not supervised by the court.
Types of probate guardianship
There are 2
types of probate guardianship: Guardianship of the
In a guardianship
of the person, the guardian has the same responsibilities to care for the child
as a parent would. That means the guardian has full legal and physical custody
of the child and can make all the decisions about the physical care of the child
that a parent would make. A guardian can be anyone: relatives, friends of the
family, or other people suitable to raise the child can ask to be legal
The guardian is
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
The guardian is
also be responsible for supervision of the child and may be liable for any
intentional damage the child may cause.
A guardianship of
the person is sometimes needed when, no matter how much parents love their
child, they are not able to parent.
Maybe 1 or
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.
The court 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. A legal guardian can care for a
child when the parents are unable to.
Guardianship of the estate
A guardianship of
the estate is set up to manage a child's income, money, or other property until
the child turns 18. A child may need a guardian of the estate if he or she
inherits money or assets. In most cases, the court appoints the surviving
parent to be the guardian of the child's estate.
In some cases the
same person can be the guardian of the person and of the estate. In other
cases, the court will appoint 2 different people.
The guardian of the
Manage the child's money;
Make smart investments; and
Manage the child's property carefully.
A guardianship of the estate is created to manage a child's property.
It is needed when:
The child owns or receives valuable property, like if a child
inherited a house or a large amount of money.
A guardianship of the estate is not needed when:
A child only owns inexpensive toys and clothing; or
The child receives social security benefits or TANF/CalWorks
IMPORTANT: If a guardianship of the estate is needed, it is
best to use a lawyer to set it up, and to represent the guardian of the estate.
This is because the fiduciary duty (this is the highest duty
the law recognizes) owed by the guardian to the child requires that all the
laws and rules be followed, and that the child’s assets (property) be
protected. A lawyer can make sure that the guardian of the estate does
everything correctly. The lawyer’s fees are paid from the estate and must be
approved by the court so there is protection for the child.