Life isn’t perfect. That’s why sometimes, someone may need extra help and require another person to lend a hand. And sometimes, that person is a minor. In some states, that’s where the conservatorship of a minor comes in.
In California, when an adult is subjected to protective care following incapacitation, we call it “conservatorship.” But does a conservatorship of a minor in California exist? And if not, what options do minors have?
Put simply, when this scenario applies to a minor child in the Golden State, it has another name: guardianship. This article focuses more on guardianship, which is easily confused with the conservatorship of a minor. If you need more information about conservatorships in general, check out this article on conservatorships in California. Otherwise, read on!
What Is Conservatorship?
Before we get into the issue of the conservatorship of a minor, it may help to define a few basic terms, including “conservatorship” and “guardianship.” You should know that conservatorship is a court-ordered process. It allows a person legal rights to provide personal care and manage finances for another adult who cannot do so themselves. Conservatorship only applies in California when the person in need of advanced care is an adult.
During conservatorship, the conservator can manage business affairs, provide personal care to the incapacitated adult, or both. However, the judge has the final say on what legal action the conservator should undertake after the petition for conservatorship. It’s also the role of the judge to pick the individual (conservator) who takes care of the incapacitated adult (conservatee).
Mostly, an individual qualifies for conservatorship when mentally or physically incapacitated. A person receives conservatorship temporarily; it can be revoked when the individual regains the capacity to manage themselves.
What Is Guardianship?
Like conservatorship, guardianship aims to provide personal care and management of finances. The main difference between the two is that conservatorship only applies to adults, whereas guardianship is primarily for minors in California.
Guardianship is applied when someone who’s not the biological parent of a child wants to receive the legal rights to care for them. This happens only under extenuating circumstances. For example, a judge may order guardianship when it’s proven that the real parents of the child have evidence of family violence or have failed to adhere to a given family violence protective order.
When granted conservatorship, the guardian has a legal duty to manage the child’s estate or personal affairs and manage where the minor resides. In some situations, the guardian can handle both areas. Guardianship is also temporary, but it can last until the child reaches adulthood.
Difference between Guardianship and Adoption
It’s easy to confuse guardianship and adoption (and conservatorship of a minor, for that matter). However, the two terms differ in many ways. Here are three of the main divergences.
- During guardianship, the child’s biological parents can still have rights over the child. With adoption, the biological parents permanently lose their rights over the adopted child. The new parents treat the adopted child as one of their own on permanent status.
- The court can end guardianship after a certain period. With adoption, the legal relationship lasts permanently. This implies that guardianship is court-supervised, while adoption is not supervised by the court.
- An adopted child will inherit property from their foster parents when the right time comes. With guardianship, the child can’t automatically inherit anything from their guardian when the period of guardianship terminates.
Types of Guardianship
When the court grants you guardianship over a child, it may come in two types: guardianship of the person or guardianship of the estate. We will examine both scenarios here.
Guardianship of the Person
When the court grants you this form of guardianship, you’ll assume the responsibilities of a natural parent to the child. This includes exercising total physical and legal custody over the child.
As a guardian, you’ll make key physical care decisions that pertain to the child under your care. Some of your duties as a guardian include making daily living decisions for the child which can include:
- Daily necessities like food and clothing
- Shelter and protection
- Support for emotional growth and physical growth
- Dental care and medical care
Guardianship of the Estate
When the court appoints you to this position, your major tasks include the management of the child’s:
- Money or debit card
- The investment made in a financial institution
- Other forms of property
You’ll oversee these duties until the child reaches adulthood.
Administration of estates mostly happens when the child inherits estate assets from absent or deceased parents. This form of guardianship mostly applies when the child’s property is valued at more than $5,000. If this happens, the guardian has to make important personal decisions and protect the estate from harm or misuse.
The Process of Appointing a Guardian
The court considers a few things when determining if a child needs guardianship. First, it determines that having a parent take custody of the child would cause more harm than benefit to the child. If a parent takes drugs or has a history of child abuse, the court may find the parent unfit for child custody & parenting time.
Second, to grant someone guardianship over the child, the court must determine that the proposed guardian will act in the best interests and not exploitation of children.
The court can grant guardianship to a child for many reasons. Guardianship may be granted if the parent/s:
- Are physically unavailable (serving in the military, serving a jail term due to a criminal conviction, in rehabilitation for substance abuse, etc.)
- Can’t care for the child due to chronic physical or mental illness
- Abuse and/or neglect the child
- Are deceased
- Have no ability to take care of the child for other reasons
Note that guardianship is only an option if both parents have a challenge listed above. If only one parent suffers from the issues listed above while the other parent is fine, the court won’t generally appoint a guardian. This is especially the case if the parent can take care of their child and that the child is comfortable staying with them.
Who Can Nominate a Guardian?
Now that we know guardianship primarily applies to children under the age of majority (18 years), we also need to know the person with powers to pick the right guardian for a child. The nomination of a guardian can happen in the following ways.
Nomination of a Guardian by a Parent or Both Parents
California probate code 1500 outlines that either of the parents may propose to the court the individual they would like to pick as a guardian. The court will then have to make the final decision of approving the nomination. Although it’s not mandatory for parents to make a nomination, the court always allows them the option.
Nomination of a Guardian by the Child
If a child is over 12 years in California, they may have their own say on custody decisions and recommend a guardian. The court will scrutinize the chosen person to determine whether they are a good candidate. One can only assume the role of guardianship when they have a known residence and meet the financial requirements to care for the child.
The final decision in this scenario lies with the court. The court, of course, will make a decision with respect to every party. If the nominated individual is found unfit, their chances of assuming guardianship are quite minimal.
This form of nomination happens when a deceased parent has named a guardian for their children through a will or testament. The court must first validate the will. It must also determine if the chosen individual will serve the best interests of the child. If that’s not the case, the proposed guardian won’t receive approval from the court.
What Are the Responsibilities of a Guardian in California?
As a guardian, your responsibilities vary based on the type of guardianship. We’ve split this section up into Guardian of the Person and Guardian of the Estate to keep things as clear as possible.
Responsibilities of a Guardian of the Person
Residence: As a legal guardian, the child must primarily stay with you even if they have parents. If the parents wish to stay with their child for a while, they may do so with proper instructions/perimeters.
Damages: As a parent, the guardian will take responsibility for any damages or personal injury caused by the child. It doesn’t matter whether it’s intentional or unintentional.
Parental Visitation: as a guardian, you have the powers to determine when and how the parents visit their child. They must stick to the schedule provided.
General Care: Make financial decisions, housing decisions, and medical decisions for the child
Responsibilities of the Guardian of Estate
As a person taking charge of the child’s estate, you’ll have the following responsibilities:
- Find, collect, and list all estate property that belongs to the child
- Create a separate account under the child’s name to keep their money
- List all property in the estate’s name
- Keep copies of the letters of guardianship with the responsible county recorder in every county where the child owns property
- Seek a court order to use the estate money for the benefit of the child if the child’s parents are still alive
There are also several things you cannot do. Make sure you:
- Don’t use the estate funds for personal gains
- Don’t lease part of the estate or restrict accounts to someone else
- Don’t borrow money from the estate
Do You Need Any Help with Guardianship in California?
If you came here seeking information on the conservatorship of a minor in California, you’ve probably figured out that what you really need is guardianship. Sometimes, it’s difficult to understand the dos and don’ts when seeking guardianship for a minor in California. Since the laws may look a bit different from other states, you may need someone to help you with the paperwork. It’s at such a point that you need the services of a legal document assistant.
At A People’s Choice, we can help you fill out all the correct paperwork to seek guardianship for a minor. We know the rules and responsibilities of a guardian and can help you avoid the expense of hiring an attorney to fill out paperwork. Just contact us here or call us at 800-747-2780 to get started.
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