NOTICE: Due to the current public health emergency, starting April 1, 2020, ex parte probate matters will be temporarily heard at 10am as part of the morning calendar.
Please provide your documents in advance by emailing: PCI@sanmateocourt.org.
Sometimes parents cannot take care of their child. When that's the case, the court can be asked to appoint another adult to take care of the child.
What is a Guardianship?
Guardianship is a court case in which a judge gives someone who is not the parent:
- custody of a child (called guardianship of the person),
- the power to manage the child's property (called guardianship of the "estate"),
A guardian can be a relative, like a grandparent, or someone who is not a relative, like a friend of the family.
Guardianships can be ordered in Probate Court or in Juvenile Court. The information in this section is about Probate Guardianships.
- If Child Protective Services (CPS) is involved in your case, you probably have to go to Juvenile Court to find out what you can do. Click to find out about Juvenile Court Guardianships (California Courts website).
A guardianship is not the same as an adoption:
|In a Guardianship:||In an Adoption:|
There are two types of Probate Guardianship:
- Guardianship of the person - means the guardian has custody of the child.
- Guardianship of the estate - means the guardian manages the child's income, money or other property until the child turns 18.
Guardianship of the person
For the most part, the court gives the guardian the same responsibilities as a parent would otherwise have. That means the guardian has legal and physical custody of the child.
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
The guardian may also be responsible for the child's behavior.
A guardian of the person may be needed when the child's parents aren't able to take care of their child. Maybe one or both parents:
- have a serious physical illness,
- are in the military and have to go overseas,
- have to go to a rehab program for a while,
- are going to jail for a while,
- have a drug or alcohol abuse problem, or
- can't take care of their child for some other reason.
The court looks at what is in the best interest of the child to make sure the child is raised in a safe, stable and loving environment.
Guardianship of the estate
A guardianship of the estate is set up to manage a child's income, money, or other property until the child turns 18. A child may need a guardian of the estate if they receive or inherit money or assets.
- In most cases, the court appoints a parent to be the guardian of the child's estate.
- In some cases, the same person (if not a parent) can be the guardian of the person and of the estate.
- In other cases, the court appoints 2 different people.
The guardian of the estate must:
- Manage the child's money;
- Make smart and approved investments; and
- Manage the child's property carefully
A guardianship of the estate is not needed when:
- A child only owns inexpensive toys and clothing; or
- child receives only social security benefits or TANF/CalWorks (welfare).
- If you are not sure if a guardianship of the estate is needed, talk to a lawyer.
A guardianship is not always needed.
If the parents aren't around to sign a legal document, you can fill out and sign a Caregiver's Authorization Affidavit:
- If you, as the person taking care of the child, are a relative of the child, this form lets you enroll the child in school. It also gives you the authority to get medical care, including mental health treatment, for the child. The back of the affidavit has a list of which relatives qualify under this law.
- If you are NOT a relative, this form still lets you enroll the child in school, but only gives you the authority to make medical care decisions that are school related (like immunizations or physical exams required by the school for enrollment).
- The parents do not have to sign the Caregiver's Authorization Affidavit but they can cancel the affidavit at any time.
- Once the child is no longer living with you, the affidavit is not valid. You must notify the school and health care provider if the child is no longer living with you.
The Caregiver's Authorization Affidavit may not be enough.
- Not all schools or medical facilities accept the Caregiver's Authorization Affidavit.
- The parents can cancel these forms at any time and take the child, even if it's not safe for the child.
- It may be hard for you to get medical insurance for the child unless you are the legal guardian.
There may be other legal document that your lawyer can prepare to give another adult the authority to take temporary care of your child. Talk to a lawyer for advice.
Before you decide to become a Guardian ask yourself:
- Are you willing to have legal responsibility for the child?
You will have the same legal responsibilities and duties as a parent. As guardian of the estate, 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
- Will the guardianship affect you and your family?
You will be like the child's parent. This can affect your relationship with other family members. Think about your time, energy, and health to decide if you want to be a guardian.
- Can you support the child?
The child may get income from Social Security, public assistance, child support from the parents, or from an inheritance from a deceased parent. But, if this is not enough, you may have to spend your own money to raise the child. Click to read more about Financial Help for Guardians.
- Do the child's relatives agree with the guardianship?
If the child's parents are alive, will they support you as guardian, or will they object and try to interfere? Some parents or other relatives may object to the guardianship and/or the court may say that they can have regular visitation.
As a guardian, you will have to make decisions like:
- Where the child lives. If you move, you must tell the court in writing right away. If you want to move out of California, you have to get the court's permission.
- Where the child goes to school. You must stay involved in the child's education and help the child get any special services, like tutoring, he or she needs.
- Type of medical and dental treatments for the child. You must make sure he or she gets proper medical and dental care.
- Counseling and mental health needs. If the child needs it, you must arrange for child counseling or other mental health services as appropriate. But you cannot place the child in a mental health institution without a court order unless the child agrees.
Duties of a Guardian of the Estate
As a guardian of the estate of the minor, you owe the highest duty the law recognizes to protect the property (assets) of the child's estate. This duty is called a fiduciary duty. It is easy to violate this duty if you do not have special training or a lawyer giving you advice. For this reason, it is better to have the advice and/or representation of a lawyer when you are asking the court to appoint you guardian of the estate. The lawyer's fees may be paid for by the estate, and must be approved by the court so there is protection for the minor.
When you manage the child's estate:
- Keep all the child's money and property separate from everyone else's money and property, including your own. Unless there is a court order, you cannot:
- Pay yourself or your lawyer with the estate's funds;
- Give away any part of the estate;
- Borrow money from the estate; or
- Spend the estate's money.
- If the child has a parent who is still alive, or the child gets money or can get support from elsewhere, then you need the court's permission to use the estate money to pay for the child's support, maintenance, or education.
- You can file a petition explaining to the court why you need to use the estate's money to support the child.
- Keep complete and accurate financial records, including records of every transaction that has to do with the estate. Write down all of the money that comes in and all money that goes out, and keep receipts for everything you buy using estate money.
- Get and/or keep insurance coverage on the child's property.
- Prepare a report, called an "accounting," and file it with the court 1 year after you become guardian. After that, you may also have to file a report every 2 years.
Visit the Probate Division's web page to find tentative rulings, ADR program, and more.