Trusted California Lawyer Helping Clients With Guardianship Questions

guardianship man and girlHaving children is one of the greatest joys many people will ever experience in their lives. While there’s no doubt that you’re dedicated to caring for your offspring every step of the way, it’s important that you put just as much thought into planning for their futures. That includes making arrangements for their wellbeing in the unfortuante event that you’re no longer around to care for them yourself.

One of the greatest things you can do for your children is to decide now who will care for them if you’re ever not able to do it yourself. Failing to make arrangements now will leave their fates up to the courts, and that’s not a situation any parent wants. At The Ledbetter Law Firm, APC, we understand that choosing a guardian for your minor children is a difficult decision, and we’re here to make the process as painless as possible.

Don’t Leave the Decision Up to the Courts

If you pass on, the courts will look to your estate planning documents to determine how you want your estate to be handled, including who you want to serve as a guardian for your children if there isn’t another parent who is around who is capable of caring for them.

When you die, your estate goes through probate, where a judge will decide who gets guardianship of your children. If you’ve designated a guardian in your will, the court will respect your wishes unless there’s some compelling reason not to. On the other hand, if you haven’t already selected a guardian to act in your absence, the judge will be forced to choose for you, without any insight about your preferences. By failing to make guardianship arrangements, you are leaving your children’s future up to a judge who knows nothing about you or them. There’s no guarantee the judge will choose someone you would have chosen yourself.

Choosing a Guardian

Selecting a guardian is no easy task. It often takes a lot of thought to find the right person who shares your values and will raise your children in line with your wishes and goals. Designating a guardian now gives you ample chance to discuss your intentions with that person, and gives him or her a chance to prepare for the role in the unlikely event that it comes about. Some people even go so far as to write out a letter of instruction to make their expectations and hopes clear, and to help guide the new guardian through the process.

You also need to make sure that the person you select is up to the task, both personally and financially. Your estate documents are your chance to help with the latter point – you can and should provide for the financial wellbeing of your children after you’re gone by leaving money specifically for that purpose. Guardianship should not be a financial burden for whomever you choose. You should also consider things like the person’s parenting style, where he or she lives, and how comfortable your child will be in his or her care.

Once you’ve decided on the best person, you need to legally document your decision. A trusted estate planning attorney can help you ensure that everything is done properly, leaving no room for questions if you pass on. It’s also a good idea to express your decision to anyone who might think they should have role, so that you can avoid ugly disputes and custody battles that will only make things worse for your children.

Frequently Asked Questions (FAQs)

How does the legal guardianship process work?

It is a step-by-step process:

  • Complete and sign a Petition for Appointment of Guardian of Minor, and submit it to the appropriate court.
  • The court will appoint an investigator to interview the proposed guardian, the child, and the parents.
  • The investigator will issue a “Probate Investigator’s Report” and submit it to the judge.
  • A hearing will be held and the judge will rule on your petition based on the best interests of the child.

I am terminally ill. Can I have the court appoint a co-guardian who can take over as sole guardian when I die?

You can have to court appoint a joint guardian if you have custody of the child. If your petition is approved, you and the joint guardian will share guardianship rights and obligations. When you die, the joint guardian will take full custody and guardianship of the child without another hearing.

What rights does a joint guardian enjoy?

The joint guardian will have the right (together with you) to determine:

  • Where the child lives,
  • What type of medical treatment the child receives,
  • Which school the child attends, and
  • Whether the child is allowed to obtain a driver’s license or join the military.

The joint guardian will also enjoy certain other incidental rights that parents normally exercise over children (the right to discipline the child within legal boundaries, for example).  

What is a Caregiver's Authorization Affidavit?

A Caregiver’s Authorization Affidavit is a notarized statement issued by the child’s parents giving you custody of the child. This affidavit grants you most of the rights that a legal guardian enjoys. Since it does not add up to legal guardianship, however, no hearing is required.

Why is legal guardianship preferable to a Caregiver's Authorization Affidavit?

Without legal guardianship, you might run into problems with certain issues such as obtaining medical insurance for the child. However, the most serious problem is that the child’s parents can cancel the affidavit any time they choose, without a hearing.

Can a legal guardian move out of state with the child?

Only if certain prerequisites are met. You must obtain permission from the court before you move, and you will have to obtain guardianship in the state you move to. Remember that guardianship laws vary from state to state, meaning that you will not necessarily even be eligible for guardianship in your new state.

What is a 'Guardian of the Estate'?

A Guardian of the Estate is appointed to manage the finances of someone (including a child) with significant assets. A Guardian of the Person, by contrast, is appointed to exercise authority over and make decisions on behalf of the child.

How can a guardianship be terminated?

A guardianship cannot be terminated unless:

  • The child dies,
  • The child reaches 18,
  • The appropriate court orders the termination of the guardianship upon petition by the guardian or the parents (if they are still alive), or
  • In the case of a guardianship of the estate, estate assets have already been fully depleted.

Guardianships Are Not Just for Children

You may have an adult relative who needs to be taken care of, due to either physical or mental disability. California law provides a process by which you can arrange for guardianship over a disabled adult, and the process is much the same as obtaining guardianship over a child.

Act Decisively; Contact Experienced California Guardian Attorney

At The Ledbetter Law Firm, APC, we understand that nothing is more crucial to your child’s well-being than a trustworthy guardian. Your children’s futures are not something to leave up to chance, and we’re here to walk you through every step of the process so you’ll have peace of mind, knowing that your children will always be cared for by someone you trust.

The Ledbetter Law Firm, APC is dedicated to helping families and individuals provide for their futures through all aspects of estate planning. Contact The Ledbetter Law Firm, APC or call today if you have questions about designating a guardian for your minor children.

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“Tom was able to take the complex and daunting task of putting together an estate plan and made it much simpler by asking the right questions, focusing on what really mattered, and getting it documented the right way. His down to earth nature, ability to explain things in non-lawyer terms and his deep estate planning expertise made him an excellent fit for our family and estate planning needs.”

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The Ledbetter Law Firm, APC