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Guardianship

What is Guardianship? – Guardianship Lawyers Serving Southern California

A guardianship is a Court alternative to powers of attorney.California guardianship most commonly applies to children. In California, a guardian is appointed by a court to be responsible for a person under the age of eighteen. Guardians are commonly appointed when a parent is terminally ill, unfit, or upon the death of both parents. Similar to a Conservatorship, a Guardianship is established in three categories; “Guardian of the Person,” “Guardian of the Estate, or BOTH: “Guardian of the Person and the Estate.”

At Vincent W. Davis & Associates, as experienced Guardianship Lawyers, we can advise you on the rights and responsibilities of these Guardianship variations, and can file and pursue the appropriate petition in Probate court. Mr. Davis can also advise you as to alternatives to guardianship that may similarly accomplish your goals.

How Guardianships are Established

A Guardian is typically nominated in one’s Will. The nominations in one’s Will provides guidance to the Probate Court for whom to actually appoint as the child’s Guardian. Once a child reaches 18, the Guardianship relationship will terminate. Even if one’s estate is not large enough to concern them with Probate or Trust Administration fees, a basic Will could still provide the ability to nominate Guardians for their children.

A Guardian’s Duties and Responsibilities

A Guardian may be appointed by a Probate court to provide for and be responsible for a minor child and see to his or her well being as well as his or her finances.

Your legal responsibilities as a Guardian of a Minor
You will have the same legal responsibilities as those of a parent, including responsibility for an intentional damages the child may cause or for negligent supervision of the child. As guardian, you must also manage the child’s finances, keep careful records, and provide to the court regular reports.

How a Guardianship might affect you and your family
You will be like the child’s parent. This can affect your relationship with other family members. Think about your time, energy, and health to decide if you want to be, or can be, a guardian.

Financial assistance available to Guardians
The child you care for may be entitled to receive state and federal income from social security, public assistance, child support from the parents, or from an inheritance from a deceased parent. If such resources are not adequate, you may need spend your own money to raise and care for the child.

Potential problems with the Child’s Relatives
Guardians may experience conflicts and contests form the child’s parents, if they are alive. Hopefully they will they support you as guardian. Parents and other relatives may be angry with you and attempt to interfere or may contest the Guardianship appointment. These potential pitfalls should be considered or negotiated in advance to make the Guardianship as stress free and mutually beneficial to you and the child as possible.

Guardian of the Person

A “Guardianship of the Person” deals with legal custody, care and the welfare of the child. It allows the Guardian to legally do the things that parents typically do. This power enables the Guardian the ability to seek medical attention for the child, or to enroll the child in school.

If both parents of a minor child die, there is no Guardian nominated, relatives and non-relatives are able to petition the court to establish a legal Guardianship over the child.

Guardians of the Person are required to report to the Court on an annual basis so that the Court can determine if the Guardian has the willingness, ability, and financial means to care for the minor child.

Guardian of the Estate

A “Guardianship of the Estate” is appointed to address how assets left to a minor will be supervised until the minor reaches the age of 18. Guardianships of the Estate are required to report to the court annually just as a Guardian of the Person. This requires the Guardian of the Estate to maintain detailed and accurate accounting records. If is determined to be doing a sub-par administration the Court will insist on better performance or seek to replace the estate Guardian with a better appointee. When a child reaches the age of 18, any assets left in an inheritance would have to be fully distributed to the 18-year old no matter their level of maturity and responsibility.

Alternatives to Guardianships of the Estate

There are alternatives to Guardianships of the Estate. These alternatives can be attractive options as the necessity and time required to report to a court as is required in a Guardianship of the Estate appointment will not be required.

One alternative would be to establish a Trust to manage the child’s financial resources. While accountings are often required with a Trust, appearances to the Court are not mandatory as they are for a Guardianship of the Estate. A Trust would also enable parents to delay the distribution of an Estate to an age beyond 18, which may be the best possible scenario considering the possible immaturity of an 18-year old.

The California Uniform Transfer to Minors Act (CUTMA) is another alternative instead of a Guardianship of the Estate. The California Uniform Transfer to Minors Act requires that a custodial account be created for the minor, but it does not require the intrusiveness of Court supervision of the Guardianship of the Estate, nor the annual accounting requirements of a Guardian of the Estate nor a Trust arrangement. The Custodian of the account is still bound by Fiduciary duties and responsibilities. Another feature of the California Uniform Transfer to Minors Act is that distributions to the minor are not mandatory when a child reaches the age of 18. Distributions could begin at 18, they could be delayed until the person reaches the age of 25, whereupon full distribution is mandatory.

Guardianship Petition – The process of applying for a Guardianship

Alternatives to Guardianships of the EstateIn Guardianship cases where the parents are still alive, the competency to the parents may been challenged.  Following an investigation, if the court agrees with a petitioner to become Guardian that the parents are unfit, the court will entertain the appointment of a Guardian such as a grandparent or other concerned relative to become the child’s Guardian.

When you petition to become Guardian of a child, you or your attorney will begin by filing a Guardianship Petition with the court.  The court will order an investigation where the applicant, the parents and, if sufficiently old enough, the child will be interviewed.  There will then be a hearing in which the court will make a decision as to what is in the child’s best interests.

Guardianship Petition – Having competent legal representation can go a long way in making sure that the petitions and other necessary forms are properly completed and that the applicant’s “appeal” for Guardianship is properly presented in court.  If you are engaged in a guardianship matter, you are urged to contact an experienced and skilled Guardianship attorney.

Experienced Guardianship Lawyers in Southern California

Contact Vincent W. Davis to have a frank discussion to determine if a Guardianship is right for your unique circumstances, and whether you need a Guardianship of the Person, Guardianship of the Estate, both, or explore alternatives to a Guardianship. If you choose to proceed, Mr. Davis can guide you through the Guardianship process and handle the required filings, document preparation, and accompany you to the stressful court appearances or appear in your behalf when your presence in not mandatory.

Set Up a Day, Evening or Weekend Appointment with an Experienced Guardianship Attorney Now

Contact The Law Offices of Vincent W. Davis & Associates in Southern California for a complimentary consultation. Consultations are available in Los Angeles, Orange County, Inland Empire including Riverside or San Bernardino Counties. We also handle California Probate, Trust, and Estate matters for out of state individuals. Mr. Davis will personally make time to share his legal advice with you and your loved ones.

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