When establishing guardianship for minors in California, it is important to understand the different options available and how each affects the legal rights of the parties involved. There are two primary types of guardianship for minor children: informal guardianship and legal guardianship. When do you need to establish formal legal guardianship of a minor? When can you use alternative guardianship forms such as a Guardianship Authorization or Caregiver Authorization Affidavit? Read on to learn more about the different types of guardianship for minor children, what forms are required, and how A People’s Choice can help you set up a guardianship.
What is a Guardianship?
Guardianship for minor children is when one person is allowed to make decisions for another person who is a minor. Control is relinquished from a biological or adoptive parent to another person on a temporary or permanent basis. A guardian of a minor is usually appointed when there is an incapacity, disability or death of the legal parent. There are three different types of guardianship: informal guardianship, temporary legal guardianship and permanent legal guardianship. Depending on the type of guardianship, guardianship powers consists of doing one or more of the following tasks for another person:
- Assure the maintenance and care of another person
- Make financial, medical, and educational decisions
- Report to the court about the guardianship status on an annual basis
Difference Between Informal Guardianship and Legal Guardianship
Sometimes life unexpectedly throws a curve ball, and a situation may arise that requires a minor child to temporarily live with a family member or friend for a short period of time. It may be for a period of 6 months while a parent gets back on their feet after suffering a financial setback or recouping from a medical incapacity which has made it difficult for them to properly care for their child. A family member or friend can take in a minor child for a short period and assume responsibility for the child on an informal basis without involving the court system. An informal caregiver usually has physical custody of the child, but they have limited rights to make legal decisions affecting the child in their care because they do not have formal legal custody.
Informal Guardianship Authorization
Parents can sign a letter of Guardianship Authorization that gives a family member or friend permission to care for and make medical and educational decisions for the child while the child is under their care. This letter of authorization acts like a power of attorney but does not give the caregiver any kind of official legal custody of the child. It also does not terminate or suspend a parent’s legal rights. The letter of authorization provides recognition of a person’s caregiver status to doctors, schools and other institutions of the informal arrangement. The authorization allows them to enroll the child in school, consent to necessary medical care and even apply for Medi-Cal or qualified benefits from the Social Security Administration.
Informal Caregiver’s Authorization Affidavit
Under Family Code sections 6550-6552, there is another form that can be unilaterally signed by the person who has care and custody of the child. This form can be used in lieu of, or in addition to the Guardian Authorization form. Schools and medical facilities are required by law to accept the Caregiver’s Authorization Affidavit, however only certain relatives are qualified to use this form. If the child will remain living in California, the person taking care of the child can complete and sign a Caregiver’s Authorization Affidavit. Important terms and conditions of using this form are:
- If the person caring for the child is a relative of the child, this form allows the relative caregiver to enroll the child in school. It also gives the relative caregiver the same rights as a guardian to get medical care, including mental health treatment, for the child. A list of the relatives that are qualified under this law are listed on the back of the affidavit.
- If the person taking care of the child is NOT a relative, this form still lets the caregiver enroll the child in school, but they have limited authorization to make medical care decisions involving school (such as immunizations or physical exams required to enroll the child in school).
- The Caregiver’s Authorization Affidavit is not an official court form.
- The Caregiver’s Authorization Affidavit does not have to be signed by the parents, but the parents can cancel the affidavit at any time.
- The affidavit is only valid during the time the child is living with the caregiver. The caregiver is required to tell the school and health care provider if the child is no longer living with them.
Both of these informal guardianship forms, the Guardianship Authorization and the Caregiver’s Authorization Affidavit, are different from a court ordered legal guardianship. With an informal guardianship, the guardian will have physical custody of the minor for a limited amount of time. Their rights to make decisions about the minor child are also limited. An informal guardianship can be a good option when a parent requires long-term hospitalization or leaves the U.S. for an extended amount of time but the parties do not want a formalized court order of guardianship. On the other hand, legal guardianship is permanent and can only be revoked by a court order.
There are many things that would be prohibited with an informal guardianship that would otherwise be allowed if a person had legal guardianship. An informal guardianship usually does not allow a person to place the minor child on their medical insurance policy. A non-parent caregiver cannot consent to a disability assessment or sign a child’s special education plan if the parent is still available to make the decision. Although an informal caregiver can enroll a child in school, the letter of authorization and affidavit does not specifically authorize the informal caregiver to enroll a child in daycare or pre-school. The informal authorization may also prevent the caregiver from consenting to extracurricular school activities, although this varies from school to school.
Temporary Legal Guardianship and Permanent Legal Guardianship
Obtaining legal guardianship can be a two-part process depending on the urgency and need of the guardianship order. Temporary legal guardianship and permanent legal guardianship are similar in that they both allow a person to make important decisions about the well-being of a minor. Both processes must have court approval. Temporary legal guardianship can be granted by the court on shortened notice in emergency situations to get a temporary order pending a full hearing on the formal legal guardianship proceedings. In order to file for a temporary emergency guardianship order, a petition for appointment of legal guardianship must have already been filed in the case. The filing of a temporary guardianship and permanent legal guardianship are typically filed at the same time.
Who Can Be a Legal Guardian of a Minor?
A court-appointed legal guardian of a minor must be qualified to serve in that capacity. The legal guardian of the minor must be at least 18-years-old and cannot have been convicted of a felony or misdemeanor. At times, the court will consider the minor’s wishes on whom he/she would like to have as his/her legal guardian. The court may review a durable power of attorney or will to decide who has been designated as the minor’s legal guardian. If such document is not available, the court will usually appoint a close family member as the minor’s legal guardian.
How to Establish Guardianship for Minors in California
In order to set up legal guardianship for minors in California, a person must file a guardianship case in the county in which the child lives. The following forms must be completed when filing a petition for guardianship of minor children:
- Petition for Appointment of Guardian of Minor
- Required attachments to Petition (must be custom prepared)
- Guardianship Petition–Child Information Attachment
- Notice of Hearing–Guardianship or Conservatorship
- Consent of Proposed Guardian, Nomination of Guardian, Consent to Appointment of Guardian and Waiver of Notice
- Duties of Guardian
- Letters of Guardianship
- Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
- Confidential Guardian Screening Form and
- Any other forms your local court requires.
A People’s Choice can help you prepare and file the forms required to establish a guardianship for minors in California. After the guardianship petition has been filed, notice is required to be given to certain parties and agencies who will have an interest in the petition. A court investigator will interview the proposed guardian and possibly the child. After the investigation has been completed, the investigator will make a recommendation to the judge based on their findings and the best interest of the child. A thorough background check of the proposed guardian will be conducted which will include a home visit. Once the investigation is complete, the proposed guardian will have to attend a hearing in which the judge will review the petition and all pertinent reports and make a final decision. The judge’s order is then filed with the clerk. Letters of Guardianship are issued which serve as the guardian’s formal authority of their capacity and decision-making ability for the minor.
How to Establish Temporary Guardianship for Minor Children
In order to establish temporary guardianship of a minor, the following forms must be completed and submitted to the court clerk at the same time as the Petition for Legal Guardianship.
- Petition for Appointment of Temporary Guardian of the Person (Form GC-110(P)) if you are asking for guardianship of the person only; or Petition for Appointment of Temporary Guardian (Form GC-110) if you are also asking for guardianship of the child’s estate;
- Required attachments to Petition
- Order Appointing Temporary Guardian (Form GC-140);
- Letters of Temporary Guardianship (Form GC-150); and
- Any other forms your local court requires.
If you are in need for legal paperwork to establish an informal or legal guardian of a minor child, contact A People’s Choice. We are happy to provide you more information on the different types of guardianship for minor children and discuss how we can help you. The Judicial Council of California has also published a pamphlet that offers a good overview of California guardianship and guardianship alternatives.