A Guardianship, also known as a Probate Guardianship is put in place when a minor is without a parent to oversee their personal care, safety, financial support and overall well being. Typically the need arises when parents die leaving minor children but can also occur when the parent is absent due to incarceration, illnesses, abusive families or other situations. The Guardianship process is a court supervised process with specific rules and requirements as to the appointment of a guardian, how the guardian conducts their responsibilities and is subject to continuing court supervision.
- Guardian – The person or persons whom the court authorizes to make decisions on behalf of the minor.
- Ward – The minor for whom the court has appointed a guardian.
California law provides for two types of guardianships that can be taken out either separately or together based on the circumstances.
- Guardianship of the Person – A guardianship of the person provides for the care, custody, control and education of the ward. The guardian must provide for the wards daily needs including schooling, medical care, clothing, shelter and food along with the love, attention and other psychological needs.
- Guardianship of the Estate – A guardianship of the estate provides for the management and control of the wards property until the ward reaches the age of eighteen. The guardian is responsible for all aspects of the wards property and is subject to strict compliance and oversight by the court. In most cases the funds of the ward are placed in blocked accounts where no withdrawals may occur without a court order.
An important aspect of estate planning is the nomination of a guardian prior to the need arising and is available only to the natural parents and adoptive parents of a minor. When parents of a minor child create an estate plan the plan should include a nomination of guardian to provide for the child should both parents die while the child is still a minor. The nomination would only take effect in the event both parents are deceased as under California law if only one parent is deceased the surviving parent normally has the right to custody to the minor child. Benefits of executing a nomination of a guardian include:
- You have direct input who will raise your children in the event of your death and gives the court guidance as to your wishes.
- Potential family disputes as to who will serve can be eliminated.
- If desired you can limit or expand the guardians authority to care for your child.
When planning in the event of an early death of both parents the use of other estate planning techniques should also be considered along with the nomination of guardian. For example, a couple might find that the benefits of placing the property to be inherited by the child in a trust coupled with a guardian of the person is more efficient and less costly than having both a guardian of the estate and guardian of the person appointed to handle the affairs. Some of the benefits of using trusts to handle the minors property and financial affairs include:
- Extending the termination of the property management beyond the eighteenth birthday of the child
- A trust is not operated under court supervision and thus can make decisions in a timely and less expensive manner
- Gives the parent the ability to determine the investment authority and powers of the trustee handling the property
- Can help protect the property from creditors of the child using spendthrift provisions