What is Guardianship?
Guardianship of minor children allows one person to make decisions on the children’s behalf. Under guardianship, control is relinquished from a biological or adoptive parent to another person on a temporary or permanent basis. Usually, a minor’s guardian is appointed upon incapacity, disability, or death of the legal parent.
Types of Guardianship
There are three different types of guardianship: informal guardianship, temporary legal guardianship, and permanent legal guardianship. Depending on the type of guardianship, powers consist of one or more of the following:
- Assuring the maintenance and care of another person
- Making financial, medical, and educational decisions
- Reporting to the court about the guardianship status on an annual basis
Informal Guardianship for Minors in California
Sometimes, a situation may require a minor child to temporarily live with a family member or friend. This situation may last a short period while a parent recovers from a financial setback or medical incapacity that inhibits their ability to properly care for their child.
In these situations, a family member or friend can take in a minor child for a short period. During this time, they assume responsibility for the child on an informal basis without involving the court system. Additionally, this informal caregiver usually has physical custody of the child. However, they have limited rights to make legal decisions affecting the child 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 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. Furthermore, it does not terminate or suspend a parent’s legal rights.
Instead, the letter of authorization provides recognition of a person’s caregiver status to doctors, schools, and other institutions. Therefore, this 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, the Caregiver’s Authorization Affidavit 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, assuming the child will remain living in California.
Important terms and conditions of using the Caregiver’s Authorization Affidavit include the following:
- If the person caring for the child is a relative identified on the back of the affidavit, the caregiver can enroll the child in school. Additionally, the relative caregiver has the same rights as a guardian to get the child medical care, including mental health treatment.
- If the person taking care of the child is NOT a relative, this form still lets the caregiver enroll the child in school. However, they have limited authorization to make medical care decisions involving school, such as immunizations or physical exams required for enrollment.
- 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. Therefore, the caregiver must tell the school and health care provider if the child is no longer living with them.
Pros and Cons of Informal Guardianship for Minors in California
Both of 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 time. Furthermore, their rights to make decisions about the minor child are also limited.
An informal guardianship is a good option when a parent requires long-term hospitalization or leaves the United States for an extended period of time. Additionally, an informal guardianship is helpful when 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.
That being said, informal guardianship does come with some downsides. For example, an informal guardianship usually does not allow a person to place the minor child on their medical insurance policy. Furthermore, 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 preschool. Additionally, the informal authorization may prevent the caregiver from consenting to extracurricular school activities, although this varies amongst schools.
Temporary and Permanent Legal Guardianship
Obtaining legal guardianship may be a two-part process depending on the urgency of the 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. Additionally, both processes must have court approval.
On the other hand, the court can grant temporary legal guardianship on shortened notice in emergency situations. They appoint this type of guardianship with a temporary order pending a full hearing on the formal legal guardianship proceedings. Furthermore, in order to file for a temporary emergency guardianship order, you must have already filed a petition for appointment of legal guardianship. Typically, people file for temporary guardianship and permanent legal guardianship 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. Furthermore, a legal guardian of a minor must be at least 18-years-old without any conviction of felonies or misdemeanors.
At times, the court will consider the minor’s wishes on whom they would like to have as their legal guardian. Other times, the court may review a durable power of attorney or will to determine who has been designated the minor’s legal guardian. However, in the absence of such documents, the court will usually appoint a close family member.
How to Establish Legal 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. Additionally, they must complete the following forms 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
- Any other forms the 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 filing the guardianship petition, you must give notice to certain parties and agencies who will have an interest in the petition. Additionally, a court investigator will interview the proposed guardian and possibly the child.
After the completion of the interview process, the investigator will make a recommendation to the judge based on their findings and the best interest of the child. Then, someone will conduct a thorough background check on the proposed guardian. This check which will include a home visit.
Once the investigation is complete, the proposed guardian will have to attend a court hearing. At this hearing, the judge will review the petition and all pertinent reports to make a final decision. Then, the guardian will file the order with the clerk. Finally, the clerk will issue Letters of Guardianship which serve as the guardian’s formal authority of their capacity and decision-making ability for the minor.
How to Establish Temporary Guardianship for Minors in California
In order to establish temporary guardianship of a minor, the guardian must complete the following forms and submit them 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)
- Any other forms the local court requires
Legal Document Assistance for Obtaining Guardianship of a Minor in California – A People’s Choice
If you are in need of legal paperwork to establish an informal or legal guardian of a minor child, contact A People’s Choice. We are happy to provide you with more information on the different types of guardianship for minor children and discuss how we can help you. Additionally, for more information, check out the The Judicial Council of California’s pamphlet. This document offers a good overview of California guardianship and guardianship alternatives.