California allows for two types of probate guardianships for minor children and adults – guardianship of the person and guardianship of the estate. In the guardianship of the person, the court-appointed guardian acts in the place of a parent and makes the day-to-day kinds of decisions that a parent would for a child or that a competent adult would make for himself. A guardian of the estate, also called a conservator, manages the financial affairs of the minor child or incapacitated adult.
A California elder law attorney can file and handle a guardianship lawsuit for you or draft documents that can make a guardian unnecessary. In either situation, it is helpful to have an understanding of the types of guardianships.
What a Guardian of the Person Does
A guardian of the person has the responsibility of looking after the physical well-being of the ward (the minor child or incapacitated adult). The court entrusts this type of guardian with making the decisions about the ward’s needs, including things like:
- Living arrangements
- Clothing
- Nutrition
- Entertainment
- Education
- Medical and dental care
- Safety
Depending on the situation, the guardian might be responsible for supervising the ward.
What a Guardian of the Estate Does
A guardian of the estate, also called a conservator, manages the ward’s assets, investments, income, debts, and expenses. The conservator has a fiduciary duty to act in the best interests of the ward and not enrich himself at the cost of the ward. A conservator can be civilly and criminally liable for mismanaging the ward’s financial affairs.
Why a Minor Child Might Need a Guardian
If both parents die before the child reaches adulthood, the child will need to have a guardian until he turns 18 years old. Sometimes one parent abandons the family, and the other parent raises the child. If the single parent dies, leaving behind a minor child, the court will need to appoint a guardian.
The minor child might need a guardian if one or both parents become unable to take care of the child because of:
Overseas military deployment
Incarceration
A history of domestic abuse
Addiction to alcohol or other drugs
A significant physical or mental health challenge
If the court finds that the best interests of the child require a legal guardian, the court can appoint one to raise the child in a loving, stable, safe environment.
When an Adult Might Need a Guardian
An adult can become temporarily or permanently unable to take care of himself, make decisions, or express decisions about his well-being or financial matters. Here are some of the more common situations in which an adult becomes incapacitated to the extent of needing a legal guardian:
- The adult is in an altered state of consciousness like a coma or vegetative state because of a severe injury like head trauma or spinal cord damage.
- The adult gets placed into a medically induced temporary coma to treat a catastrophic injury from an accident.
- The adult has a substantial impairment from a mental health issue.
- The adult chronically abuses drugs or alcohol.
- The adult has intellectual impairment from a developmental disability, a disease like Alzheimer’s or another form of dementia, or some other cause.
If the adult cannot manage for himself and would likely come to physical or financial harm, it might be appropriate to seek guardianship for that individual.
Who Can Serve as a Guardian
Any suitable person could be a candidate to serve as another person’s guardian. A friend or relative of the ward could get appointed as a guardian. Also, there are professional guardians through agencies.
The Process of Getting a Guardian Appointed
A person must file a lawsuit asking a judge to appoint him as a guardian. Other interested parties can usually intervene in the case. The judge has to decide who, if anyone, is qualified and appropriate to serve as a guardian.
Contact an Experienced Estate Planning Attorney Today
A California elder law attorney can answer your questions and discuss your options about guardianship. Call our office to set up a consultation with one of our lawyers.