In California, legal guardianship is a court order that gives an adult the responsibility of taking care of a child who isn’t biologically theirs. Once appointed, a legal guardian has many of the same rights, responsibilities, and decision-making power as an actual parent, including the ability to make medical and education decisions on behalf of the child. Because these duties are so similar to what actual parents do, legal guardianship is often confused with adoption, however the two are not the same thing.
Here are a few things to know about legal guardianship in California, why you might want to consider appointing one, and how these scenarios differ from adoption.
Legal Guardianship in California
There are two major categories of legal guardianship in California: Juvenile Court Guardianship, and Probate Guardianship.
Juvenile Court Guardianship
Juvenile Court Guardianship requests come to a judge from either Family Court or a Juvenile Court action. These are the children removed from their home by child protective services due to neglect, abuse, or other dangers. Unification with biological parents is always the main goal in these cases, however if that’s not possible, a legal guardianship appointment will be made.
If a parent does not agree with the decision to elect a guardian, they are free to file an objection with the court, and to make statements at the hearing. However, in the end, all decisions will be made by the judge according to the best interest of the child. If the parent’s objections are overruled, it’s possible the court will still grant visitation rights while the child is under the care of his or her legal guardian.
Probate Guardianship
The second category of legal guardianship in California, is when a child enters the system through probate court. Probate court is the part of our judicial system that handles death matters, such as wills, estates, trusts, and other practical issues that need to be resolved when a person dies. When a legal guardianship application is initiated on behalf of an orphaned child, this is referred to as a “Probate Guardianship.”
Usually Probate Guardianships only apply to children who are under eighteen. For some cases, though, it’s possible to request an extension for youth who are over eighteen, but not yet twenty-one.
Scope of Legal Guardianship Powers in California
The decision to grant an outside adult legal authority over a non-biological child is not something California courts consider lightly. Circumstances that require a guardian will vary from case to case, and sometimes the full spectrum of rights is neither appropriate or needed. Therefore, when granting a legal guardianship, California courts authorize this power in one of three ways:
Guardianship of the person;
Guardianship of the estate; or
Both personal and estate guardianship.
Legal Guardianship of the Person
An adult who is granted physical guardianship over a child has the duty of meeting all the child’s basic, daily needs. This includes food, shelter, safety, and emotional support, but also extends to things like medical care, health needs, and education. When you’re appointed to be a legal guardian over a child’s physical needs, you have all the same responsibilities of caring for that child as a biological parent, plus the legal authority to make necessary decisions to that effect.
Legal Guardianship of the Estate
On the other hand, estate guardianship extends only so far as that child’s property is concerned. Usually this kind of guardian is arranged when a child inherits money or real property, and needs an adult to oversee fiscal matters until he or she turns eighteen. In most cases, the surviving parent is appointed to this position, unless both parents are deceased.
If the child is orphaned, the court might grant both physical custody and estate management to a single guardian. Or, these powers might be split between two people, in order to make it harder for a guardian to take advantage of a child’s wealth and age to benefit themselves.
Who Can Be a Legal Guardian
Anyone can apply to be a child’s legal guardian, and they do not actually have to be related. Guardians may include:
Grandparents;
Adult siblings;
Aunts, uncles, and other relatives;
Foster parents;
Close friends; or,
A teacher, counselor, or any other adult who has a relationship with the child.
Regardless of who applies, all guardianship appointments will be made in accordance with a child’s best interests.
Applying for Legal Guardianship in California
Whether the child’s parents are deceased, or are simply unable to properly care for their children, the application for legal guardianship follows the same basic process: paperwork, court investigation, and hearing.
Paperwork
To initiate a guardianship application, there are several forms that you need to complete, including a petition for guardianship. Many of these forms require supporting documents, so it’s a good idea to have your family law attorney on hand to help you avoid making common mistakes that will delay your process.
Court Investigation
Once all the forms have been filed, the court will assign an investigator to visit your home. This person will conduct interviews, look for signs of neglect or abuse, and conduct criminal background checks on everyone involved. This might sound a little invasive, but it is a necessary step to ensure that guardianship decisions are made according to the best interest of the child.
After these independent inquiries are through, the investigator will file their findings with the court, and copies of this report will be given to your attorney, as well as to any other relatives involved. If there is anything in the account you believe was made in error, your attorney can help you file an objection.
Hearing
The last step to becoming a legal guardian, is to attend the hearing. At this meeting, the judge will listen to all interested parties involved—including the child’s parents, if they are alive and object to the appointment. If there are too many competing interests involved, a judge may even assign an attorney to specifically represent the child’s interest. If the judge approves your application at the hearing, he or she will issue an order to make your position official.
As a legal guardian, you will be expected to file an annual status report. So long as there aren’t any problems, your appointment will continue as outlined in the guardianship order. Usually until the child turns eighteen.
Legal Guardianship vs. Adoption in California
While legal guardianship and adoption function to provide the same, basic care for children in need, they are not the same thing. The primary difference being, that in a legal guardianship, parents retain their parental rights, whereas in adoption, these rights are transferred, and cannot be reacquired. For this reason, the process is generally more rigorous than that of a legal guardianship.
Once finalized, adoption displaces the line of inheritance, halts any child support duties the biological parents might have had, and relieves adoptive parents from the obligation of fostering a relationship between the child and its biological parents—including visitation. Legal guardians, on the other hand, are subject to visitation schedules (as laid down by the court), and unlike adoptive parents, legal guardians must provide special provisions in their will, if they wish their wards to inherit.
In short, once a child is adopted, their new parents have all the same rights, responsibilities, obligations, and authoritative power as biological parents. In the eyes of the law, there is no distinction.
Legal Guardianship Attorneys in California
Whether it’s the permeance of adoption, or merely a legal guardianship, taking on the responsibility of someone else’s child is a huge endeavor, and one that should be thoughtfully considered with your family law attorney. If you have further questions about the legal guardianship process in California, or other adoption-related questions, we are here for you. Call us at (209) 989-4425, or get in touch online to schedule your consultation, and let us help you pursue the arrangement that will work best for you and the child you care about.
Temporary guardianship in California means that an adult – someone over the age of 18 – is responsible for a child for a set period of time. The guardian can make decisions related to finances, education, medical care and other important issues, and he or she is responsible for the child’s care, as well.
Temporary Guardianship in California: The Basics
There are several reasons the courts award temporary guardianship to an adult other than a child’s parent. For example, the courts could intervene when a child:
Is not receiving necessary medical treatment
Does not have suitable adults in his or her life (such as when the child’s parent is also a minor)
Has been prevented from going to school
Cannot be with his or her parents for a variety of reasons, such as incarceration, military service or death
If you want to become a child’s temporary guardian, be prepared to prove that guardianship is necessary for the child’s well-being. Some of the reasons courts will grant a person temporary guardianship involve a parent’s drug addiction or alcoholism, domestic violence situations, deportation or serious illness.
Any adult can ask to become a child’s temporary guardian, provided that he or she is at least 18 years old and has never been convicted of a crime. The courts can take the child’s wishes into account, as well. Grandparents, aunts or uncles, siblings and other relatives may petition to be a guardian, as can family friends and people who know and love the child.
How Do You Get Temporary Guardianship in California?
A child’s biological parents can give you temporary guardianship – but sometimes the courts step in and award someone temporary guardianship of a child without the parents’ consent. For most people, the best course of action is to talk to an attorney about this type of guardianship (even with the parents’ consent), because it’s a very serious matter and affects parental rights.
In order for the court to appoint someone as a child’s legal guardian, the judge presiding over the case must be satisfied that it’s in the child’s best interests.
How Long Does Temporary Guardianship Last in California?
Temporary guardianship only lasts for a certain period of time – usually not longer than 6 months. If the child still needs a guardian after the temporary order expires, you can start the temporary guardianship process again or file for permanent guardianship through the court.
Custody and Temporary Guardianship
When you’re granted temporary guardianship of a child, you assume all the legal rights and responsibilities of being a parent. The biological parents’ rights are suspended while the guardianship order is in place – they cannot make decisions for the child. (It’s important to know that parental rights are not terminated, as in permanently taken away, with a temporary guardianship order. They’re only suspended for as long as the order lasts.)
As a child’s guardian, you have full legal and physical custody of the child. You make decisions about:
You decide where the child should attend school, and you’re entitled to all the child’s school records.
Living situation. You determine where the child lives, although you can’t change the child’s residence to a place outside of California unless the court gives you permission.
Medical treatment. You’re responsible for meeting the child’s medical needs, and generally, you have the authority to give your consent to his or her medical treatment. However, if the child is 14 or older, you can only consent to surgery on the child if the child agrees or you have a court order for it – except, of course, in emergencies.
You’ll have other responsibilities, too, such as providing for the child financially and taking responsibility for a child’s misconduct. As a guardian, the court might require you to complete counseling or parenting classes, or to get specific services for the child; every case is different, but your attorney can help you understand what needs to happen in your situation.
What About Joint Guardianship?
Joint guardianship is an option when one parent has a serious medical condition and needs another adult to care for his or her child. The guardian still gets to make the same decisions as he or she would under any other circumstances – just in partnership with the child’s biological parent. If the child’s biological parent passes away, the guardian automatically becomes the sole legal guardian of the child.
Do You Need to Talk to a Lawyer About Temporary Guardianship in California?
If you need to talk to an attorney about temporary guardianship, we can help you. Call us at 209-546-6246 to schedule a consultation today.
The adoption process in California varies based on the type of adoption you’re pursuing. For example, a stepparent who is adopting his or her spouse’s child will have to take different steps than a couple adopting a newborn will take – but generally, every adoption follows a similar course. Typically, the adoption process includes:
Most adoptions follow similar steps. Your attorney can give you case-specific guidance, but here’s a closer look at the most basic steps so you know what to expect.
#1. Finding an Adoption Attorney
For many people, the journey to growing a family begins with hiring an adoption attorney. Your attorney can walk you through the entire process, from start to finish, and she’ll answer your questions every step of the way.
Your attorney will fill out the court forms required by California law. The forms you need to file depend on the type of adoption you’re using. The most common types include stepparent or domestic partner adoptions, independent adoptions, agency adoptions and international adoptions. Each has its own requirements.
Your attorney will file all the necessary forms for you. Usually, they go to the court clerk in your county. (Don’t worry – your attorney will make sure that you have copies of everything.)
#4. Getting Consent From the Birth Parent or Parents, if Necessary
Sometimes birth parents relinquish custody of their children. When that happens, you don’t have to get their consent. However, if you’re adopting your stepchild or your domestic partner’s child, you will most likely have to get the child’s other parent’s or guardian’s consent.
You may still be able to adopt the child without the parent’s or guardian’s consent if:
The other birth parent has abandoned the child for more than a year, and he or she has not seen or spoken with the child or paid any child support
Your attorney serves the other birth parent with an Adoption Request form, which requires the other birth parent to show up in court on a specific date to object to the adoption
The judge in your case determines that your adoption is in the child’s best interest
#5. Being Interviewed and Submitting to an Investigation as Part of the Adoption Process in California
You’ll have to go through a home study, be interviewed by an investigator (often a social worker) and go through a criminal background investigation as part of the adoption process in California.
The home study is designed to ensure that you’re prepared to bring a child into your family, and the requirements might vary based on the type of adoption you’re pursuing. Additionally, you must agree to a fingerprint-based state and federal background check, and the government will check for your name in the Child Abuse Central Index. Some convictions will bar you from adoption, such as anything that requires you to register as a sex offender, infliction of injury on a spouse (or cohabitant, or parent of a child), or endangering a child.
#6. Getting a Court Date and Attending an Adoption Hearing
After the court receives a complete report from the investigator assigned to your case, you’ll get a court date for an adoption hearing. Your attorney will keep you updated if there are any changes, and she’ll go with you when you appear in court, as well.
At the adoption hearing, the judge will issue his or her decision. You must bring all the forms you have filled out (remember, your attorney will make sure you have plenty of copies). The child must also attend the hearing.
Do You Need to Talk to a Lawyer About the Adoption Process in California?
If you’re considering adoption, whether you’re going through an agency or adopting a stepchild or other relative, we may be able to help you. Call us at (209) 546-6246 to set up a consultation to talk about your case and get answers to all your questions today.
California adoption requirements are different from those in other states – and the laws in our state play an important role in your entire experience. If you’re considering adopting a child in California, you may want to consult with a Stockton, CA adoption attorney who can help.
California Adoption Requirements: What You Need to Know
If you want to adopt a child in California, you’ll have to follow the letter of the law. California adoption requirements involve nearly every aspect of the process, including who’s allowed to adopt a child, how much families can pay and how the legal paperwork becomes binding. Some of the most common requirements involve:
#1. California Adoption Requirements About the Adopter’s Age: How Old Do You Have to Be to Adopt a Child?
If you want to adopt a child, you must be at least 10 years older than the child you’re adopting. However, if you’re adopting a stepchild or another relative, you don’t have to meet this requirement.
#2. Criminal History Checks: A Mandatory Requirement
Every prospective adoptive parent must submit to a criminal background check. Some convictions are a permanent bar to adoption, while others are negotiable (and sometimes at the discretion of an adoption agency, if that’s the route you’re taking). You will be barred from adoption if you have been convicted of anything that requires you to register as a sex offender or endangering a child, as well as some other types of crimes. Your adoption attorney can help you understand how this law applies to you, as well.
You must undergo a home study investigation if you want to adopt a child in California. This adoption requirement exists so that you can prove that you can provide a stable, nurturing home to a child. Additionally, the social worker assigned to your case can help you understand what types of adoption opportunities might be best for your family, as well as answer your questions and help you prepare for the process.
During the home study investigation, you’ll have to:
Submit fingerprints
Undergo a physical examination
Attend adoption training classes
Complete at least one individual interview with a social worker
Complete an in-home visit and investigation with a social worker
#4. California Adoption Requirements on How Much You Can Pay a Birth Mother
California laws say that you can pay reasonable maternity-related medical costs for your baby’s birth mother. In some cases, you can provide money for expenses that are necessary for the birth mother or baby’s welfare or expenses that are directly related to the pregnancy. In some cases, birth mothers are allowed to receive money for:
Housing
Food
Basic utilities
Transportation
Maternity clothing
However, the birth mother must make a written request for payment and provide written receipts for any money you provide – and you’ll have to submit the receipts to the court before a judge can finalize your adoption.
#5. Consent for Adoption
Depending on your circumstances, you and your attorney may need to obtain consent from several people to go through with the adoption. You may need consent from:
The child’s living parents (both, if they are married or if the father is named on the child’s birth certificate)
The child’s custodial parent only, provided that the other parent has failed to communicate with and support the child for at least a year, or if the other parent fails to respond to notice of adoption proceedings
Your spouse, if you’re married
The child being adopted, provided the child is over the age of 12
Do You Need to Talk to a Lawyer About California Adoption Requirements?
These are only the most basic California adoption requirements – you may need to meet other requirements as well. If you have questions about adoption, we may be able to help.
Call us at (209) 546-6246 to set up a consultation to talk about your case and get answers to all your questions today.
Child Grief During Guardianship: What You Need to Know
The courts in California award guardianship for a number of reasons. In some cases, it’s because a child’s parents have passed away, or they’re incapable of caring for the child due to physical, mental or medical issues. In any case, as a guardian, you may be faced with serious child grief – and you need to know how to help the child you care so much about.
Child Grief
Children react differently than adults do. They haven’t achieved the emotional maturity we adults have, and in many cases, they’re a little confused about what’s happening to them – both with the guardianship (“Is this permanent?”) and with what’s going on with their biological parents. In many cases, kids benefit from talking to a therapist who understands what they’re going through.
Child Grief After the Death of a Parent
If you’re the guardian of a child whose parent has died, you need to know that sometimes kids feel immediate grief; in other cases, children have a persistent belief that the family member is still alive. Many experts suggest that you shouldn’t force a child to go to a funeral – but if the child doesn’t want to go, maybe you can plan to honor or remember the person in a meaningful way, such as lighting candles, telling stories, or saying prayers for the child’s loved one.
Watch for signs of serious problems, such as:
A decline in performance at school
Acting as if they are younger than they are
Believing they are seeing or talking to the deceased person
Extended periods of depression that cause the child to lose interest in normal activities and events
Fear of being alone
Imitating the deceased person
Inability to sleep
Loss of appetite
Statements about wanting to join the deceased person
Withdrawal from friends
If you notice any of these problems, it’s a good idea to get outside help from a licensed therapist who’s qualified to work with children.
Child Grief After Being Separated From Parents
Children who are separated from their parents often experience grief, as well, although it may be different from the type of grief they’d experience if a parent passed away. Your role as a guardian is to understand the child’s developmental level and help him or her deal with the loss in a responsible way. Experts suggest not focusing on the behaviors they exhibit themselves, but the cause of the behavior instead – and in many cases, it’s grief.
Toddlers and Grief
Sometimes toddlers regress; for example, they leave behind the toilet training skills they once had. They may also have trouble communicating, particularly if the biological parent was their “interpreter,” or they may have difficulty establishing their own identity.
What you can do:
Pay attention to meeting the child’s dependency needs, but help him or her feel more adequate and independent on his or her own terms
Don’t put pressure on the child to attain new skills
Preschoolers and Grief
Sometimes preschoolers misunderstand the causes of parental separation – and they think it’s their fault.
What you can do:
Reassure the child that he or she isn’t at fault
Give plenty of opportunities to play, because that’s how kids at this age sort out their feelings
Give the child age-appropriate explanations for the separation
Grade-School Children and Grief
School-aged children might lose quite a bit of energy when they’re grieving, and they might believe that they’re “different” from their peers. Sometimes this causes behavioral issues with their peers.
What you can do:
Give the child time to grieve so he or she can focus on other tasks when it’s time to
Provide factual, age-appropriate information
Help the child come up with a way to answer questions from peers if it becomes necessary
Adolescents and Grief
Adolescents are already testing the waters and opposing authority figures to discover their own boundaries, but being separated from a parent can disrupt the natural order of things. Some adolescents have control issues, particularly when they feel that the biggest issues in their lives are outside their control.
What you can do:
Provide adolescents with as many opportunities as possible to be in control of their own lives
Let adolescents make decisions about their own futures
Provide adolescents with as much information as you can
If you’re like many people, you want to know how to get guardianship of a child in California. Perhaps you want guardianship because the child’s parents are unable to care for them or have unfortunately passed away; maybe the child’s parents have been deported or are suffering from drug or alcohol addiction.
No matter why you’d like to get guardianship of a child in California, we may be able to help you.
How to Get Guardianship of a Child in California
For most people, the best way to get guardianship of a child in California involves talking to a family law attorney who understands the process. You have to file several papers with the court and follow a series of steps to get a court hearing – and the rules and forms can be pretty complicated.
Some of the forms you’ll need to complete include:
Petition for Appointment of Guardian of the Person
Guardianship Petition
Notice of Hearing – Guardianship or Conservatorship
Duties of Guardian
Letters of Guardianship
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act
Confidential Guardian Screening Form
This isn’t even a complete list – there are a number of other documents you must fill out, as well as provide supporting paperwork that backs up the claims you make on these forms. (That’s why a lot of people work with a lawyer – it saves them the headache.)
If you’re asking the court for guardianship of a child in California, you’ll have to give notice to certain people with an interest in the case. Those people include relatives and agencies. In order to give notice, you have to follow the rules to a T. If you don’t, you may have to start the entire process over. The people you must notify include:
The child’s parents or the person who has legal custody of the child now, as well as the child (if the child is 12 or older)
The child’s grandparents, brothers and sisters, half-brothers and half-sisters
The county’s human services or social services department
The California Department of Social Services (but only if you’re not related to the child by blood, marriage or adoption)
If you can’t find the right people to notify, there are certain steps you must take to prove to the court that you tried.
Eventually, you’ll have a court hearing where the judge will order – or turn down your request for – guardianship.
The judge will order guardianship if it is necessary or appropriate. If one or both parents objects, the judge can still order guardianship if:
Staying with the parents (or one of the parents) will be detrimental to the child
The guardianship will be in the best interest of the child
Why People Get Guardianship of a Child in California
A guardian – someone other than a child’s parents who is given legal custody of the child – has all the same rights and responsibilities as a biological parent does. The courts sometimes give adults who are not the biological parents of a child guardianship when the child’s parents cannot care for them due to:
Alcoholism
Death
Deportation
Domestic violence
Drug addiction
Illness
Incarceration
Military duties abroad
Serious financial issues
Other circumstances that make biological parents unable or unfit to care for their children
Is Guardianship of a Child the Same as Adoption in California?
Guardianship is different from adoption. In guardianship, the biological parents maintain their parental rights – and in some cases, they’re awarded visitation with their child during the guardianship. Guardianship can also be supervised by the court, and it can be terminated when the parent’s circumstances improve.
California courts prefer reuniting a child with his or her parents and terminating guardianship if a parent can show that he or she is making progress and improvements.
In adoption, though, the parent’s parental rights are terminated permanently. The biological parent no longer has any right to visitation (or any relationship at all) with the child. Adoptive parents aren’t supervised by the courts.
Do You Need to Talk to a Lawyer About How to Get Guardianship of a Child in California?
If you want to get guardianship of a child in California, we may be able to help you. Just call us at 209-910-9865 to tell us what you’re going through. We’ll put together a strategy that gets you the best possible outcome.
It is unfortunate, but sometimes biological parents are unable to care for their children. Naturally, many of these parents don’t want to put their child up for adoption but want their child to be cared for until they can get back on their feet; guardianship allows them to do this. A guardianship is a useful tool for allowing someone, who is not the child’s parent to:
Take custody of the child that is not their biological child;
Manage the child’s estate (property in their name); or
Both
This article will discuss “probate guardianships”, which are typically brought by the non-biological parent seeking to be appointed as guardian of a child or by another member of the biological parent’s family to have the Court appoint someone to care for the child.
As a practical matter, parents who can’t care for their child but don’t want to put their child up for adoption, leave their child with a close friend or other members of their family. Unfortunately, those individuals do not have the legal authority to make decisions on behalf of the child; being appointed as a guardian gives that guardian all the rights and responsibilities that a biological parent would have. In general, a guardian can only be appointed for a minor (someone under 18 years of age), but in situations involving young immigrants they can pursue special immigrant juvenile status; special immigrant juvenile status allows for a guardian to be appointed to an individual who is up to 21 years of age.
It is important to note the key differences between guardianship and adoption. In a guardianship:
The biological parents retain their parental rights, and can request reasonable contact with their child;
The Court has the authority to undo the guardianship once the biological parent shows they can care for their child; and
The Court can oversee the appointed guardian.
In an adoption:
The legal relationship between the biological parent and their child is permanently severed;
The adoptive parents obtain the status as the “legal parent” [Cross Link to Parentage Article];
The adopted child is treated as the legal child of the adoptive parents for all purposes, including inheritance;
The adoptive family is not overseen by the Court.
Guardianship and adoption have distinct purposes, but the result is to place a child in an environment where they can be supported and grow into successful members of society.
What Types of Guardianships Are There?
There are two (2) kinds of “probate guardianships:
Guardianship of the person; and
Guardianship of the estate
Guardianship of the Person
In this type of guardianship, the appointed guardian has the same rights and responsibilities as the biological parent; the guardian has a duty to properly care for their ward. Further, the guardian possesses full custody (both physical and legal) and has the authority to make all decisions relating to well-being of the child as the biological parent. Some of the responsibilities a guardian has to the child include:
The guardian must provide the child with food, clothing, and shelter;
The guardian must ensure the child’s safety and protection;
The guardian must enable to the child to grow both physically, mentally, and emotionally;
The guardian must provide the child with medical and dental care;
The guardian must provide the child with an education, including any of the child’s special needs.
A common misconception about guardianships is that the biological parents do not love or care for their child – the clear majority of guardianships arise because the parent is presently unable to properly care for their child and want to put their child in an environment that is best for them. Some of the reasons guardianships occur is because one (1) or both “legal parents”:
Have a serious mental illness;
Have a severe physical disability;
Are in the military and are about to be deployed;
Have to attend a rehabilitation program to get past an addiction;
Have been convicted of a crime, and must serve time in jail; or
Have a history of domestic violence and need to seek treatment.
Much like custody determination, the Court uses the “Best Interest of the Child Rule” when it determines whether to appoint a particular guardian to a child. Ultimately, the Court wants the child to be raised in a stable, loving, and safe environment.
The second type of guardianship occurs when the child has become the legal owner of property (personal or real). In these situations, a guardian is appointed to manage the child’s money.
Guardianship of the Estate
As mentioned above, a guardian is appointed to protect a child’s estate when they obtain property (real or personal) until that child reaches the age of 18. The most common situation where a child needs a guardian to oversee their estate arises when the child inherits assets; generally, the Court appoints a surviving “legal parent” as the guardian of the child’s estate. Additionally, it is entirely possible for one individual to be both the guardian of the person and the guardian of that child’s estate.
The guardian of the estate owes a “fiduciary duty” to the child, and is obligated to:
Manage the child’s assets in accordance with their fiduciary duty;
Make intelligent investment decisions on behalf of the child in accordance with their fiduciary duty (this general includes a duty to diversify the child’s portfolio); and
Manage the child’s property in accordance with their fiduciary duty.
This concept of “fiduciary duty” is of the utmost importance and should not be violated under any circumstances.
What is the “Fiduciary Duty”?
The fiduciary duty constitutes the highest standard of care in law. The individual who owes a “fiduciary duty” is referred to as the “fiduciary”, while the person who gains the benefit of that duty is rightly referred to as the “beneficiary” or “principal.” It is helpful to look at the “fiduciary duty” through the lens of corporate law to clarify exactly what the “fiduciary duty” entails. There are five (5) broad categories of duties that are included within the fiduciary duty:
Duty of Care;
Duty of Loyalty;
Duty of Prudence;
Duty of Good Faith
Duty of Disclosure
Duty of Care– A fiduciary is required to use all material information, which is readily available to them, prior to making a decision effecting the beneficiary’s assets. To determine whether the fiduciary was informed of all material information, the Courts will look at the quality of the information, the advice available to the fiduciary, and whether the fiduciary had an opportunity to acquire additional information prior to making their decision. Additionally, the fiduciary is required to view the information available to them with a “critical eye” rather than blindly accept the information as accurate.
Duty of Loyalty – A fiduciary is not allowed to use their position of confidence and trust to the beneficiary for their own personal gain. This duty is encompassed in a public policy which requires that the fiduciary scrupulously advance the beneficiaries interest while simultaneously avoiding taking any actions that benefit them; the reasoning is that whatever benefit the fiduciary obtained, could have been obtained by the beneficiary had the fiduciary used their assets for that purpose.
Duty of Prudence– A fiduciary has a duty to protect the beneficiary’s assets using the degree of skill, caution, and care that a prudent fiduciary would exercise.
Duty of Good Faith – A fiduciary has a duty to make a good faith effort to further the beneficiary’s interests, avoid any violations of the law, and fulfill his obligations to the beneficiary.
Duty of Disclosure – The fiduciary has a duty to utilize complete candor when communicating with the beneficiary.
As discussed above, there are two (2) types of probate guardianship: (1) guardianship of the person, and (2) guardianship of the estate. A guardianship of the person is utilized when the biological parents, for whatever reason, is unable to properly care for their child but want the opportunity to resume parenting when they are able. To accomplish this, they seek an order from the Court appointing a legal guardian of the child until they can care for their child. While acting as a guardian of a child, the guardian has all the rights and responsibilities of a “legal parent.” A guardianship of the estate occurs when a minor has acquired substantial assets (typically an inheritance), and an individual needs to be appointed to protect those assets. This guardian is typically a surviving parent. The guardian of an estate is held to a very high standard of care known as the “fiduciary duty.”
If you or a loved one believe that a guardianship is necessary, contact Maples Family Law today.
