The legal definition for guardianship varies from state to state, but in
California, it applies to children under the age of 18. If you are an
adult who is caring for a friend or family member’s child, you may
be considering making it official and becoming the child’s legal
guardian, at least for now.
Under California law, if a court orders guardianship, it means that it
is allowing an adult, who is not a child’s mother or father to have
custody of the child. It can also mean that an adult who is not the child’s
parent has the legal authority to manage the child’s estate. Sometimes,
guardianship can involve both – caring for the child and the child’s estate.
The information in this post is about probate guardianships, which are
typically filed by someone who is asking the court to appoint them as
a guardian or by someone who is asking the court to appoint a guardian
for a child. This post does not apply to non-parents who are awarded custody
through the Juvenile Dependency Court.
Why Probate Guardianship?
If you’re taking care of a child who is not yours or if you’re
planning to, and you expect the child to stay with you for an extended
period of time, you’ll need the authority to make certain decisions
for the child. For example, you may need to enroll the child in school,
take him or her to the doctor, or sign forms to let the child have an
unexpected surgery. Or, you may need to get health insurance for the child.
In order to do all of these things, you must obtain the legal authority
from the court.
If the court decides to allow you to be a child’s guardian, it means
you will receive a court order that gives you the authority to make decisions
on behalf of the child. Generally, you can ask the court for a probate
guardianship as long as the child is under 18.
Guardianship vs. Adoption
Guardianship and adoption are not the same things. With a guardianship,
the parents still maintain their parental rights; therefore, the parents
may ask for reasonable contact with their child. The guardian may be supervised
by the court, and if the parents come back into the picture, the court
may let the parents have their child back depending on the circumstances.
For example, if a mother was arrested for drug possession and had to go
to jail and rehab, the court may allow her to have her child back after
she finishes her sentence, probation, and successfully completes a substance
With an adoption:
- The parents lose their parental rights.
- The adoptive parents assume a permanent legal relationship with the child,
which is the same as if the child was their biological son or daughter.
- An adopted child has the same inheritance rights as a biological child.
- Unlike guardianships, adoptive parents are not subject to being supervised
by the court.
Two Types of Guardianships in CA
As we mentioned earlier, there are two types of guardianships in California.
With guardianship of the person, the guardian has the same responsibilities
as a parent: The guardian must provide the child with food, shelter, emotional
support, medical and dental care, safety and protection, clothing, and
With guardianship of the estate, the guardian manages the child’s
assets. Usually, this happens when a child is an actor, a musician, or
the child receives an inheritance. Sometimes, the individual will be both
a guardian of the person and a guardian of the estate. If someone is appointed
as a guardian of the estate, he or she must manage the child’s assets,
manage the child’s property very carefully, and be intelligent about
investing the child’s money.
Alternatives to Guardianship
Perhaps you do not want to go to court and ask to be a child’s legal
guardian because you feel that’s a little too much or not necessary.
Maybe your reason is that this situation is only temporary, and you don’t
feel guardianship would be appropriate. While guardianship is important
in some situations, it’s not always needed.
If the parents are willing to sign papers to give you the right to take
care of their son or daughter, a guardianship may not be necessary. For
example, if the child’s parents want you to take care of the child,
and if they do not believe that you are any danger to the child in any
way, and they want to avoid the hassle of going to court, they can sign
what’s called a
Power of Attorney for a Minor Child. They will have to sign this form in front of a notary, but the form will
give you physical custody of their child, which will allow you to make
decisions about their child’s medical care and schooling.
If you are interested in signing the
Power of Attorney for a Minor Child, here’s our advice:
- Make sure you have the child’s health insurance information.
- If you want to add the child to your health insurance, realize that you’ll
probably have to seek a court-ordered guardianship of the person. Why?
Because, insurance companies don’t normally allow people to add
someone else’s child to their health insurance policy unless there
is a court order in place.
This does not have to be a permanent solution. The child’s parents
can cancel the
Power of Attorney if they want, so keep that in mind if the situation becomes impractical
for some reason.
We sincerely hope this information help you better understand guardianship
in California. If you need experienced legal representation in a
child custody matter in the Greater Los Angeles Area, please contact
Claery & Hammond, LLP for a free case evaluation.
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