What is a Guardianship?
A probate guardianship is a court proceeding in which a guardian is appointed by the probate court to protect the person or estate of a minor. California Probate Code §1510. California uses “guardianship” to refer to both personal and financial decisions in regard to a minor while “conservatorship” is used when the person in question is an adult.
Guardianship of the Person
In a guardianship of the person, the probate court appoints a person or persons to have custody of a minor. A probate guardian of the person is responsible for:
- determining where the minor lives;
- supervising the minor’s conduct;
- making sure the minor attends school;
- making sure the minor receives medical car
Guardianship of the Estate
Guardianships of the estate typically are sought when a minor inherits significant assets.
In a guardianship of the estate the probate court appoints a guardian to manage a minor’s property. Generally, the guardian has a duty to:
- control and preserve estate property (California Probate Code §16006);
- Segregate guardianship estate property from other property including the guardian’s own personal assets (California Probate Code §16009);
- Avoid conflicts of interest, including (California Probate Code §16004); and
- Hold the minor’s property for the minor’s benefit until the minor reaches 18 years of age.
Unless the court finds a nominee “unsuitable” the court must appoint as guardian of the estate the person or entity nominated under California Probate Code §1500. California Probate Code §1514(c)–(d).
If there is no nomination or the nominee is found to be unsuitable, then the guardian of the estate is governed by the best interests of the minor. California Probate Code §1514(e)(1).
How Long Does a Guardianship Last?
Guardianship of the person, estate, or both lasts until a minor’s 18th birthday, unless the court terminates it earlier. California Probate Code §1600(a).
Further, the guardianship may be terminated when the guardianship is no longer in the minor’s best interest California Probate Code §1601.
What is a Temporary Guardianship?
A temporary guardianship is appointed in urgent situations and the temporary guardian serves until the a final determination on a petition for appointment of a guardian. California Probate Code §§1310(b), 2250(a).
A temporary guardianship cannot be requested until a general petition for appointment of a guardian has been filed. California Probate Code §2250(a).
Powers and Duties of Temporary Guardian
A temporary guardian has the powers necessary to provide for the temporary care, maintenance, and support of the minor, and to protect their property from loss or injury. California Probate Code §2252.
Temporary Guardian of the Person
A “temporary guardian or temporary conservator has only those powers and duties of a guardian or conservator that are necessary to provide for the temporary care, maintenance, and support of the ward or conservatee and that are necessary to conserve and protect the property of the ward or conservatee from loss or injury.”
Unless otherwise ordered by the court, a temporary guardian of the person ahs the same authority as a general guardian to consent to medical treatment on behalf of the minor. California Probate Code §§2354, 2252(b)(1).
Temporary Guardian of the Estate
A temporary guardian of the of the estate has the powers of a general guardian of the estate as necessary to temporarily care for the minor’s property under California Probate Code §2252(a).
Termination of Temporary Guardianship
Unless the court orders an extension or a shortening of time under California Probate Code §2257(b), the powers of a temporary guardian terminate on the earlier of:
“(1) The time the temporary guardian or conservator acquires notice that a guardian or conservator is appointed and qualified.
(2) Thirty days after the appointment of the temporary guardian or temporary conservator or such earlier time as the court may specify in the order of appointment.”
A temporary guardianship will also terminate:
- at the death of the minor;
- at the attainment of majority by the minor;
- when the court finds that the guardianship is no longer necessary or it is in the best interest of the minor to terminate it;
- when the minor is adopted or emancipated a temporary guardianship of the person terminates.
Notice Requirement for Temporary Guardianship
At least 5 days before the hearing, the petition and notice of hearing must be personally delivered to:
- the minor if over 12 years of age;
- the parents of the minor;
- any person who has a valid visitation order with the minor at the time the petition is filed.
When is a Guardianship Needed?
Typically a guardianship is sought: to prevent the abuse or neglect of a minor child, when a child’s parents cannot be found, or the child has been living with a nonparent adult.
Filing the Petition
Under California Probate Code §1510(a), any relative or “other person on behalf of the minor” may file the petition.
If the minor is 12 years of age or older, he or she may be the petitioner. California Probate Code §1510(a).
Setting Petition Hearing and Notice for General Guardianship
When the petition is filed the clerk sets a hearing date.
Generally, the minor if age 12 or over, the minor’s parents, spouse, other relatives within the second degree (children, grandparents, brothers, sisters), and certain public agencies are entitled to notice. California Probate Code §1511.
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