FAMILY LAW
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Changing your Name
Adoption Overview
Guardianship
Guardianship
Guardianship is a court proceeding in which a judge gives someone who is not the parent:
- custody of a child, or
- the power to manage the child's property (called "estate"), or
- both.
Can I name a guardian for my children?
Yes. You can write a letter naming a guardian for your children and keep it with your important papers or write in your Will who you want to be the guardian of your children when you pass away.
But if both parents are dead, the court will decide who the guardian is. The court will try to appoint the person you wanted. But, the court will also consider what is best for your child and will ask the child what s/he wants.
Relatives, friends of the family, or other people can ask to be legal guardians.
Can a child ask the Court for a guardian?
Yes. If the child is 12 or older, he/she can ask the court to appoint a guardian.
The information in this section is about Probate Guardianships.
Probate Guardianship of the Person is set up because a child is living with an adult who is not a parent, and the adult needs the legal right to make decisions on behalf of the child.
Sometimes, no matter how much parents love their child, they aren't able to take care of their child. Maybe one or both parents:
- have a serious physical 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 abuse, or
- can't 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 aren't able to.
There are two types of Probate Guardianship:
Guardianship of the Person which means the guardian has custody of the child.
The guardian has the same responsibilities as a parent. That means the guardian has full legal and physical custody of the child. 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 may also be responsible for the child's behavior and any damage the child may cause.
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/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 two different people.
A guardianship of the estate is not needed when:
- a child only owns inexpensive toys and clothing,
- the child receives social security benefits or TANF/CalWorks (welfare).
Is Guardianship the Same as Adoption?
No. Here are some differences:
In a Guardianship:
- Parents still have parental rights. They can have 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.
In an Adoption:
- The parents' rights are permanently ended.
- The legal relationship with the adopted parents is permanent and is exactly the same as a birth family.
- An adopted child inherits from his or her adoptive parent(s), just as a birth child would.
- Adoptive families are not supervised by the court.
What if the parents agree to let me care for their child and don't want to go to court?
They can sign a notarized letter that says you have "custody" of the child. The letter should give you permission to make decisions about the child's education and medical care. It's also a good idea to get a medical release for emergencies.
Remember: The parents can cancel this agreement at any time.
What if the parents aren't available to sign an agreement with me?
If the parents are not available to sign a private agreement, you can fill out a Caregiver's Authorization Affidavit. This form usually lets you enroll the child in school and get medical care for the child.
The Caregiver's Authorization Affidavit is not an official court form. But the law says you can fill out this form if you are related to the child.
Remember: The parents can cancel this Affidavit at any time.
Click here (PDF) to get a Caregiver's Authorization Affidavit and instructions.
Can I meet all the child's needs with the Caregiver's Authorization Affidavit or a notarized letter from the parents?
Maybe not. Here's why:
- Not all schools or medical facilities accept the Caregiver's Authorization Affidavit or a notarized letter.
- The parents can cancel these forms or a letter at any time and take the child, even if it's not safe for the child.
- It may be hard for you to get medical insurance for the child unless you are the legal guardian.
When does a guardianship end?
A guardianship ends when one of these things happens:
- The child turns 18;
- The child is adopted, marries, enters the military, or gets declared an adult (emancipated) by court order;
- The court ends the guardianship;
- A different person (successor guardian) becomes the guardian; or
- The child dies before turning 18.
Who can ask the court to end a guardianship?
- The child, if 12 or older,
- The parents of the child, or
- The guardian.
Can I resign as guardian?
Yes. A guardian can resign. But first, there must be a court hearing. And, you must give notice of the hearing to all relatives who were notified of your appointment as guardian.
You must show the court that it would be in the child's best interest for you to resign. If the judge agrees, s/he will appoint a guardian to replace you.
If no replacement is available, the child will probably be made a dependent in Juvinille Court.
