Establishing Guardianships

In California, a guardianship is a court proceeding in which someone seeks legal authority to act on behalf of a minor child. Typically, a guardianship is necessary where the minor’s parents have both predeceased the minor, or where someone (the parents or a third party) have died and left money or assets to a minor.

There are two types of guardianships—guardianship of the person and guardianship of the estate.

  • Guardian of the person — This person is vested with the legal authority to provide for the personal needs of the minor, i.e. food, clothing, shelter, medical care, etc. A guardian of the person does not have the power, however, to manage any financial assets belonging to the minor. A guardianship of the person is often necessary when both the mother and father of the minor have predeceased the minor. In those cases, absent a guardianship, no one has the legal authority or obligation to provide for the minor’s personal necessities. If the deceased parents have named a guardian of their minor child in their wills, that person can petition the court to be appointed as guardian of the minor. After an in-depth investigation by the court, the court will appoint the designated individual as guardian if the court believes that the appointment is in the best interests of the minor. If there is no will nominating individuals to serve as guardians, then relatives have first claim on serving as guardians. However, all guardian appointments must be approved by the court and will be made only after the court is satisfied that the person or persons seeking appointment are fit to serve in that capacity.
  • Guardian of the estate — If both parents of the minor child are dead and the child owns assets or has inherited property as a result of their deaths, then a guardianship of the estate will also be required. The guardian of the estate may or may not be the same individual who serves as guardian of the person. As with the guardian of the person, the court will require an investigation of the person seeking to serve as guardian of the estate and will only approve the appointment after the court is satisfied that the person seeking the appointment is fit to serve in that capacity. It is not unusual for a guardianship of the estate to be needed even where the minor child’s parents are both still alive. For instance, if a grandparent dies and has left a life insurance policy or retirement account payable to a minor grandchild, a guardianship of the estate almost always is required to collect and hold the proceeds until the child has reached the age of majority.

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