Life does not always go as planned. For parents with minor children, a sudden illness or injury or an unexpected absence from home requires arrangements for the care of children in the absence of the parents. Most people ask a close relative or friend to step into their shoes and care for their children if the unexpected happens. However, we must be sure that we have provided that trusted person with the legal documents necessary to be able to step into those shoes so they can deal with schools, doctors and so on. In California, nominating a legal guardian is the way in which we set forth our desires for that person to be the caregiver under the law.
What Is a Guardianship?
There are actually two types of guardianship in California: Guardianship of the person and guardianship of the estate. Typically they are sought concurrently, but there are cases where only one or another is necessary. Guardianship of the person begins as a court petition asking that custody and the authority to care for a minor child be given to someone other than a parent. A guardianship appointment typically gives the guardian custody of the child and authority to make decisions regarding the child’s care, including:
- Medical and dental care
- Food, clothing, and shelter
- Emotional growth and wellbeing
- Protection and safety
Appointment as a guardianship of a minor’s estate also requires a court proceeding, but the focus is on appointing a guardian to manage a child’s financial affairs, including income and property management, as opposed to providing day-to-day care and guidance for the child. A guardian of the estate would be required in situations in which the parents of a child die leaving assets and money to the child as an inheritance, although if the parent had done a thorough plan then a trustee of the parents’ trust would manage that child’s assets pursuant to the terms of the trust.
Parents meeting with an attorney to plan their estate frequently designate their preference for guardian should they both die. They can designate the same person as guardian of the person and of the estate, or they can choose different people for each role. The ultimate approval and appointment of their preference remains with the court but the courts give great deference to the parents nominated person(s).
When Is a Guardianship Needed?
As already mentioned, the death of a child’s parents would, at the very least, require a request for a court to appoint a guardian of the person. Depending on whether money and assets are left to the child by a last will and testament or through a trust, there could also be a need for a guardian of the estate. Other situations that could arise resulting in a parent asking someone to care for a child include the following:
- A parent in the military with orders for an overseas assignment.
- A parent entering a drug or alcohol rehabilitation facility.
- The incarceration in jail or prison of a parent.
- The physical or mental incapacity of the parent.
Courts considering an application to appoint a guardian of the person are concerned with the best interest of the child. The primary focus is to provide a safe and stable setting for the care of the child during the period of time that the parent or parents are unable to do so.
Alternative or Supplement to Formal Guardianship
While a petition for guardianship is pending with the court or in situations requiring a caregiver for a child for only a short-term, there are two options available. A parent can designate another person to care for a child using form titled, Power of Attorney for a Minor Child. The form is signed by the parent or parents in front of a notary.
The power of attorney is an acknowledgment by the parent that the person named in it as the caregiver is authorized to have physical custody of the child and make decisions regarding education and health care. Parents do not give up their rights to child custody, nor do they give up decision-making authority. The form merely extends the authority to another person, but parents may cancel at any time.
The second option for a caregiver, particularly in situations where the consent of the parent cannot be obtained, is a Caregiver’s Authorization Affidavit. After it is signed in front of a notary by the individual serving as the child’s caregiver, it authorizes the person to enroll the child in school. If the caregiver is related to the child, the affidavit also allows the person to make decisions regarding medical care and treatment. The affidavit may be canceled by the parents of the child at any time.
The Power of Attorney for a Minor Child and the Caregiver’s Authorization Affidavit are limited in the authority granted to the caregiver. The other shortcoming is the ability of a parent to cancel them at will. Guardianship granted by a court gives the guardian essentially the same powers and authority as a parent and without the uncertainty of the ability of a parent to cancel it.
Speak to an attorney for more information about guardianship nominations when you are doing your estate plan. Keep in mind they can be nominated in your will or trust or can be a stand-alone document, but the important thing is that you have noted your preference so that the court can consider that when appointing a guardian for your minor child, should such an appointment ever be necessary.
At NM Law, our estate planning attorneys are a knowledgeable and experienced source of information about guardianship, including how to incorporate it into your estate planning. Call them today at (949) 253-0000 to schedule an appointment.