Every parent wants to provide a good life for their children, but seldom do we stop to think about what would happen to them if we were no longer there to care for them.
Many families in California delay or put off estate planning, mistakenly thinking that it’s something that only matters when they’re older.
The reality is that regardless of age or financial situation, parents with children under the age of 18 should have a plan in place for their care.
Without one, California guardianship laws leave this crucial decision to a probate judge, with no guarantee your children will be placed with your preferred guardian.
What is Legal Guardianship in California?
Legal guardianship is a court process through which an adult is granted legal authority to care for a minor child, known as the ward.
Guardians assume many of the same legal responsibilities as parents, including the care and well-being of the child. Guardianship is commonly used when parents have passed away, become incapacitated, are incarcerated, or are otherwise unable to provide care and stability for the child.
Choosing a guardian is one of the most important decisions that parents can make. Without a formal guardian nomination, the court will have little guidance about who you want to care for your children.
Yet even when the parents nominate a guardian, guardianship can only legally be appointed by probate court.
Clients often ask us what the difference is between guardianship and adoption. Unlike adoption, guardianship is not necessarily permanent. Adoption gives lifelong parental rights to the adopter, with the parents losing their right to their children permanently.
With guardianship, the legal responsibility ends once a child turns 18. If the parents recover from incapacitation or are able to care for their child again, they can petition the court to terminate the guardianship and potentially regain custody of their children.
Forms of Guardianship in California
California guardianship laws distinguish between two types of guardianship: guardianship of the person, and guardianship of the estate.
Guardianship of the Person
Under guardianship of the person, the guardian is responsible for the child’s day-to-day care, including housing, food, clothing, and schooling. This is what most parents think of when they think of guardianship.
Guardianship of the Estate
Guardianship of the estate of a minor in California refers to the management of properties or money that legally belong to the child.
When a child under the age of 18 receives an inheritance, life insurance payout, lawsuit settlement, or other significant asset, they are unable to legally take control of these assets. Guardianship of the estate is put in place so that an adult can manage these assets on behalf of the child.
Because this process is supervised by California probate court, guardians must get explicit approval to pay for anything that uses the child’s own finances. Guardianship of the estate of a minor in California also requires financial record keeping and annual reporting to the probate court.
How California Guardianship Laws Affect Parents
Many parents assume that if they leave an inheritance for their minor child in their will, that a relative will be able to access the inherited money on their behalf. However, that doesn’t happen without proper planning and court approval.
Even when the parent names a guardian of the person and a guardian of the estate, the process is not automatic. The probate court will ultimately decide who will serve in those roles.
The court’s primary concern is whether the proposed legal guardian will serve the child’s best interests. The court will usually honor the parents’ wishes in most cases, but there are circumstances where the court may choose someone else.
If a nominated guardian has ongoing legal issues or is financially unstable, the court may appoint a backup guardian instead, or even choose someone else entirely.
Parents can’t skip the probate process, but proper estate planning does give them significant influence over whom the court appoints.
Naming a Legal Guardian in Your Estate Plan
Legal guardians are most commonly nominated through specific language in a will.
However, guardianship provisions in a will only take effect upon the death of both parents. If one parent passes away while the other still lives, the surviving parent generally still retains custody of their children. If both parents pass away, the estate will move to probate, where the court will formally arrange guardianship.
However, if both parents become incapacitated rather than passing away, a will generally won’t take effect.
In these situations, parents often use broader estate planning documents like a Durable Power of Attorney to name a guardian or leave instructions for temporary caregiving and financial management during incapacity.
Regardless of the means of nomination, a California probate judge is still required to review the case before guardianship can be officially granted.
Working with a California estate planning attorney can help you plan for all possibilities, and ensure your children will be cared for should anything happen to you.
Temporary Guardianship and Emergency Situations
None of us can predict when an emergency situation will occur, and as we’ve seen, any form of guardianship must be approved by California probate court. Probate proceedings still take time, even in urgent situations involving legal guardianship.
That raises an important question that many California families overlook: who will take care of your children in the immediate aftermath of an emergency that causes death or incapacitation to both parents?
This is where it helps to discuss plans ahead of time with trusted family members and friends. Temporary caregiving arrangements can and should be made, but that doesn’t mean the temporary caregiver will automatically become their legal guardian. However, it can ensure that your children are safe and cared for while their long-term legal guardianship is settled.
Temporary caregiving arrangements may also be needed if the parents’ preferred guardian lives far away or out of the country, and cannot immediately assume custody.
For these reasons, many parents choose to identify at least one temporary or backup guardian who can step in until the preferred guardian is available.
Trusts and Financial Planning for Minor Children
Many parents wish to leave their children money for their future. However, California law does not consider minors under the age of 18 to have the legal capacity to enter into contracts, sell or manage real estate, or directly manage large sums of money.
Establishing a revocable living trust is how many parents get around this problem. With a trust, the child’s finances can be managed by a successor trustee until they reach a certain age. Trusts also give families more flexibility around how their children receive their inheritance.
Without a trust or other estate planning measures in place, a guardianship of the estate may be established by the California probate court when the minor has inherited substantial assets.
This isn’t always ideal. Once the child turns 18, the guardianship is terminated and the remaining funds are directly transferred to the child in a lump sum, with no oversight.
Establishing a trust typically bypasses probate. The successor trustee can quickly step in and begin managing the trust assets without ongoing court approval or supervision.
Trusts can also leave specific instructions for the child’s money to be spent for health, education, maintenance, and support (often called HEMS).
Distributions can also be arranged for specific times or life milestones, such as graduating college or turning 25. That can keep a minor from receiving a large sum of money before they are prepared to handle it responsibly.
How a California Estate Planning Attorney Can Help
Young parents who haven’t put much prior thought into estate planning are likely to have many questions about legal guardianship for minors.
A California estate planning attorney like the Law Office of Vidhya Babu will help you answer those questions.
For example, we often advise our clients on the qualities that make a good choice for guardianship. Parents may want to name a grandparent as guardian, but sometimes their age or physical health may not make them the best choice. Financial stability should also be considered for potential guardians, as well as backup or emergency candidates.
Working with a California estate planning attorney will help you decide what level of estate planning your family needs. For some, a will that nominates a preferred guardian is enough. Other families who are able to leave a significant inheritance might benefit more from establishing a trust for their minor children.
Early planning reduces the likelihood of disputes or complications later on. A California estate planning attorney will help you work through all the potential options, so you can be confident in your decisions.
The Law Office of Vidhya Babu: California Estate Planning Attorney
No parent wants their children to live a life without them. But should the unthinkable happen, planning ahead reduces uncertainty, and gives you more control over your children’s future.
When you’re ready to consider options for legal guardianship of your minor children, the Law Office of Vidhya Babu is here to help. We serve families in San Mateo and the greater Bay Area, helping them develop comprehensive estate plans that align with their wishes.
Contact us today for a personalized consultation on how estate planning can protect your family’s future.
**DISCLAIMER**
This article is for informational purposes only and does not constitute legal advice. Every family’s situation is unique, and guardianship and estate planning laws can vary depending on individual circumstances. If you need legal advice regarding guardianship, estate planning, or protecting your minor children, consult with a qualified California estate planning attorney.