Probate: Guardianship

Guardianship of the person is set up because a child is living with an adult who is not a parent, and the adult needs the legal authority to make decisions on behalf of the child. In a Probate Guardianship of the Person, the guardian has full legal and physical custody of the child.

What does a guardian of the person do? The guardian generally has the same responsibilities as a parent. That means the guardian is responsible for the child’s care, including the child’s:

• Food, clothing and shelter
• Safety and protection
• Physical and emotional growth
• Medical and dental care
• Education and any special needs.

Guardianship of the Estate

What does a guardian of the estate do? A guardian of the estate manages a child’s income, money, or other property until the child turns 18. A child may need a guardian of the estate if s/he inherits money or assets.

• In most cases, the Court appoints the surviving parent to be the guardian of the child’s Estate.
• In some cases the same person can be the guardian of the person and of the estate.
• In other cases, the Court will appoint two different people.

Other resources

• Duties of Guardian, Judicial Council form GC248
• Probate Guardianship Pamphlet, Judicial Council Pamphlet GC-205
• California Conservatorships and Guardianships, a book for lawyers published by the California Continuing Education of the Bar (CEB)

You can also look for Self-Help books at libraries, bookstores or the Orange County Public Law Library .

Other types of situations involving children and adults responsible for them

• For information on child custody related to divorce or parentage actions, see the Self Help Family section of this website.
• For information on custody of children who are victims or neglect or abuse or who are “youthful offenders”, see the Self Help Juvenile Dependency section of this website.

Guardianship vs Adoption

Is guardianship the same as adoption?

No. Here are some differences:

• Parents still have parental rights. They can have reasonable contact with the child.
• The Court can end a guardianship if the parents become able to take care of the child.
• Guardians can be supervised by the court.

• The parents’ rights are permanently ended.
• The legal relationship is permanent and is exactly the same as a birth family.
• An adoptee inherits from his or her adoptive parent(s), just as a child would.
• Adoptive families are not supervised by the Court

Probate: Guardianship Quick Links

• Probate: Guardianship
• Becoming a Guardian
• Guardianship Duties
• How to End a Guardianship

Are you ready for a guardianship?

Before you decide to become a Guardian, ask yourself these questions:

Do you want legal responsibility for the child?

You will have the same legal responsibilities as a parent, including liability for damages the child may cause. As guardian, you must also manage the child's finances, keep careful records, give the Court reports and ask the Court permission to handle certain financial matters.

How will the guardianship affect you and your family?

You will be like the child’s parent. This may affect your relationship with other family members. Consider if your health, available time and energy make this a good decision for you.

Do you have enough money?

The child may get income from Social Security, public assistance, a parent or the estate of a deceased parent. If this is not enough, you may have to spend your own money to raise the child.

Will there be problems with the child's relatives?

If the child's parents are alive, will they support you as Guardian, or be hostile and interfering? Some parents may contest the Guardianship and/or the Court may say that they can have regular visitation.

Can I name a guardian for my children?

Yes. You can write a letter naming a guardian and place it with your important papers or write the name of the proposed guardian in your will.

But if both parents are dead, the Court must appoint the guardian. The Court will try to appoint the person you nominate. But, the Court will also consider what is best for your child and will ask the child what s/he wants.

Sometimes a parent who is terminally ill can ask the Court to appoint a joint guardian. This can make the transition easier when the parent dies. It gives the sick parent the comfort of knowing their child will be safe with the guardian they chose. And when the parent dies, the joint guardian will have full custody of the child without another guardianship hearing.

Pros and Cons

In this section, you can find out answers to the following questions:

Is guardianship always necessary?

No. In fact many adults who have physical custody of a child avoid becoming a legal guardian because:

• The caretaker believes the child's parents will not consent to a legal Guardianship.
• Filing for a Guardianship would cause more problems among family members.
• The caretaker doesn't want the Court to monitor his or her personal life.
• The caretaker will only act as guardian for a short period of time and the parents are willing to sign a form called a Caregiver's Authorization Affidavit.

Can I still act as the child’s caretaker without being the legal guardian?

Yes. In California, parents can sign a Caregiver Authorization Affidavit to give permission for the caretaker to care for the child in their place. This will give a relative permission to make decisions about the child’s education and medical care, or a non-relative permission to make decisions about education and school-related medical care. The child’s parents will give you informal "custody" of the child.

If you are a non-relative, it’s also a good idea to get a medical release from the parents. This will allow you to make medical decisions beyond school-related health care needs.

You can get a copy of this form from a legal forms book at a bookstore or stationery store or from a lawyer.

Will the guardianship authorization, affidavit of caregiver or a notarized letter from the parents allow me to meet all the child’s needs?

Maybe not. Here’s why:

• Not all schools or medical facilities accept these forms.
• The parents can cancel the forms at any time.
• If the parents changed their minds and wanted the child back, it might not be safe for the child.
• It may be hard for you to get medical insurance for the child unless you are the legal guardian.

If you think you need to set up a legal guardianship for the child, read the Becoming a Guardian page on this website.

Guardianship Forms

To establish a Guardianship of the Person or the Estate, you need the forms listed below. You can download the forms by clicking on the form number.

You can also get them from:

• The Judicial Council’s Forms page ,
• Self-Help Center at any of the court locations,
• The Court’s online forms webpage.

YOU MAY NEED THESE FORMS, TOO:

* There are times when you may not have to give notice to other people. If you are petitioning for appointment as a guardian, or asking the Court to end a guardianship, the petition form has a place to ask the Court to waive the notice requirement. But, if you are petitioning for some other reason in a guardianship, and you want the court to waive the notice requirement, you must fill out this form and file it. You may need this form if, for example, other people who have an interest in the proposed guardianship cannot be found. If the judge agrees, s/he will sign the order.

** If the court requires you to deposit money in a blocked account.

*** If money has been deposited into a blocked account, the financial institution where the account is held must complete the form letting the Court know that money has been deposited.

TO ESTABLISH A TEMPORARY GUARDIANSHIP, YOU NEED THESE FORMS:

GUARDIANSHIP CHECKLIST

Establishing a Guardianship is complicated. You may need help with this process. You can contact the Self-Help Center or ask a lawyer to help you.

The basic steps are listed below.

1. Make sure you have all the forms you need. (See the Probate forms page on the California Court website.)
2. Fill out your forms completely. If you need help, go to the Self-Help Center.
3. Make one original and two copies of your forms and take them to the Probate Clerk’s Office or you may submit them by e-file (click for address, directions, and hours).
4. The clerk will keep your original forms and give you back one ‘Filed’ copy.
5. Give notice of the hearing to certain people and agencies. Read How to give “notice”, below.
6. There will be an investigation before the hearing.
7. Bring your proposed Order Appointing Guardian of the Child (Form GC-240 ) and Letters of Guardianship (Form GC-250 ) to the Probate Clerk’s Office at least four days before your hearing.
8. Get ready for your hearing. Bring:

• Copies of signed Proof of Service of Notice(s)
• An interpreter, if you do not speak English well

HOW TO GIVE NOTICE

The law says you must “give notice” to certain people, relatives and agencies. This means someone — not you — must “serve” (give) copies of your Court forms either personally or by mail to those people and agencies so they will know you are asking to be the guardian of the child.

You must do this even if you think they don’t care or may disagree with you.

There are rules for giving notice. You must follow them carefully. Otherwise, you may have to go back to Court.

To read about the law on giving notice, read Probate Code Sections 1511 and 1516, and Section 1542.

THERE ARE TWO KINDS OF NOTICE: PERSONAL AND BY MAIL

Personal notice means the server personally hands the papers to someone.

You must give personal notice to:

• The parents (or the person(s) with legal custody of the child now)
• The child you want to be guardian to, if the child is 12 or over

Someone — not you — must personally serve (give) a copy of the Notice of Hearing and Petition for Appointment of Guardian and all other forms you filled out at least 15 days before the Court hearing.

The person who serves the forms must fill out and sign the Proof of Service, then give it to you. Then, file it with the clerk at:

Superior Court of California, County of Orange

Costa Mesa Justice Complex
Probate Clerk’s Office
3390 Harbor Blvd.
Costa Mesa, CA 92626

You can use mail to give notice to:

• The child’s brothers and sisters, if they are 12 or older
• Half-brothers and half-sisters (from either parent), if they are 12 or older
• The child’s grandparents (parents of the child’s mother and parents of the child’s father)

If you are not related to the child by blood, marriage, or adoption, you must also mail notice to:

The California Department of Social Services
Director of Social Services
744 P Street
Sacramento, CA 95814

Someone — not you — must serve (mail) a copy of the Notice of Hearing and Petition for Appointment of Guardian and all other forms you filled out at least 15 days before the Court hearing.

The server must fill out and sign the Proof of Service by Mail on the back of the Notice of Hearing form, then give it back to you. File it at:

Superior Court of California, County of OrangeCosta Mesa Justice Complex
Probate Clerk’s Office
3390 Harbor Blvd.
Costa Mesa, CA 92626

WHO CAN SERVE?

Ask someone you know who is 18 or over or ask a process server. A “Process Server” is a business you pay to deliver Court forms. Look in the Yellow Pages, under “Process Serving.”

If you cannot give notice to the father because he is "unknown," attach a copy of the child's birth certificate to the Petition for Appointment. Mark it as an exhibit.