The Petition for Guardianship:  Is it Really Necessary?

A single parent in the military has received orders for a six-month overseas deployment and plans to leave her children with a neighbor. A grandmother is taking care of her grandchild because one parent is in jail and the other parent has disappeared. The couple who agreed to be nominated as guardians of their best friends’ three children currently have the children living in their home after both parents were killed in a tragic car crash but now wonder what to do because out-of-state relatives are demanding that the children live with them even though this is not what the parents wanted. Is a petition for guardianship in Probate Court necessary in each of these potential client scenarios or is there some type of alternative in California?      

The purpose of this blog post is to address whether a probate petition for Guardianship of the Person is the only option available in the three different scenarios presented above. An individual can only become a legal guardian of a child after the Court approves a petition for guardianship. The Probate Court may appoint a guardian of the person for a child when there is no parent able to meet the needs of the child due to the parents’ death, incapacity, abandonment, military obligations, or other reasons. When a guardianship is in place, the parents’ rights are suspended rather than terminated, which means the guardian is the primary decision-maker for the child and has full legal and physical custody of the child. The guardian and not the parents have care, custody, and control of the child and are held responsible for meeting the child’s needs for food, clothing, shelter, education, and all medical and dental care.

 

Scenario 1:  Military Service Member on Deployment

If the custodial parent trusts another adult to temporarily take care of his or her child while he or she is unable to do so and wants to avoid going to Court, the parent can sign a written private agreement to give the adult physical custody of the child. The document typically used is a Power of Attorney, which is a legal document that must be notarized. The document may include authority to make education decisions and should allow authorization of medical care and dental care, at least in emergency situations, as allowed under California Family Code section 6910. The Power of Attorney can be limited to a specific duration of time, such as the period of the parent’s military deployment, and can be canceled by the parent at any time. The child will normally need to remain on the parent’s health care insurance plan since a court-ordered guardianship is usually required by most insurance companies when the child is not the insured’s child.   

Scenario 2:  Grandparent Left with Grandchild

While a very unfortunate situation, many grandparents become the de facto parents for their grandchildren when the parents are unable or unwilling to fill this role. When this happens, the grandparent or any other relative of the child filling the role of caregiver, can complete a Caregiver’s Authorization Affidavit under California Family Code section 6552. If not a relative as defined under the statute, an individual who is a child’s caregiver can still use the form to enroll a minor in school and authorize school-related medical care. If the individual is a relative, the form can be used to provide any other needed medical care. The Affidavit may be a temporary or long-term solution, depending upon the situation. The parent can revoke the caregiver’s authority, and this type of document will most likely not be sufficient if the child needs to be covered under the grandparent’s health insurance. If this is a concern, then a court-ordered guardianship is required.  

Scenario 3:  Deceased Parents and Guardianship Nomination      

In the final scenario, a court ordered guardianship will be required to determine who will be responsible for the three children whose parents have died. The parents’ written guardianship nomination does not provide the couple any legal authority for the children’s custody and care. Only a California Court can provide them this authority, and the Court will be guided by the best interests of the child standard when making its decision on who should be the guardians when there are competing petitions. The couple does have standing to bring a petition and request to be appointed since California law allows any person in addition to a relative to file a petition for appointment of a guardian of a minor.    

This blog post only provides a general overview of guardianship of the person and some alternatives based on current California law. As explained above, a guardianship is not always necessary. Each situation depends on the specific facts and circumstances involved and needs an independent legal assessment to consider the advantages and disadvantages of available options. [Disclaimer]

Our probate team at Naimish & Lewis can advise you on estate planning, trusts and estates administration, and probate related matters such as probate administration, conservatorship and guardianship. To schedule an initial consultation with an attorney at our firm to discuss a guardianship matter, please contact us.