What is a Guardianship?
A guardianship usually exists when an adult—who is not the parent of the child—is appointed by the court or by the parent via a will to care for the child and his or her property. A guardian who is appointed by the child’s parent or the court will have the authority and the obligation to make decisions which affect medical decisions for the child, educational decisions for the child and the care and supervision of the child. Guardianship can occur upon the death of the parents, or under certain other circumstances, such as when the parents are unable or unwilling to exercise their parental rights.
In some instances, the parents may voluntarily consent to guardianship. If the parent or parents are alive but the court has determined that naming a guardian for a child is in the child’s best interests, then the parents’ right to custody, supervision and care of the child can be temporarily suspended and a guardian named. During this time, depending on the circumstances surrounding a guardian being named, the parents may be able to have visitation with the child, either supervised or unsupervised. The court will generally try to appoint a relative or friend of the family when appointing a guardian.
Is a Guardianship the Same as an Adoption?
An adoption essentially provides parents for a child, as a “substitute” for the biological parents and can occur for a number of reasons. The end result of an adoption is that the child has all the rights of a biological child and is treated by the parents as a biological child. When an adoption occurs, the parental rights of the biological parents are permanently terminated. In a guardianship which occurs while the parents are still alive, the parents retain parental rights and may have some level of contact with the child, depending on what the court decides. The court can end a guardianship if and when the circumstances of the biological parents change, rendering them able and/or willing to resume care of their child.
A guardian who is appointed by the court will be under court supervision—adoptive parents are not. Finally, an adopted child may inherit from his or her adoptive parents, just like a birth child. When a guardianship exists, the child cannot inherit from the guardian or guardians. Guardians do, however have the same responsibilities to care for the child as a parent, with full legal and physical custody and the ability to make all decisions for the child.
Why It’s Important to Name a Guardian for Your Children in Your Estate Plan
If you have minor children, then naming a guardian will be one facet of having your estate plan prepared—and one of the more difficult aspects. The task of appointing someone to care for your child after your death is a difficult one, however it is a decision which can be crucial to the future of your child. The person you choose does not necessarily have to be a relative, although people do often choose relatives as guardians for their children. You will want to consider whether the person you choose as a guardian has a similar parenting style to your own, how well your children know the person and the age and physical and mental capabilities of the person.
Ideally, you will choose a guardian who lives close to you, to avoid having your children uprooted from their school and familiar surroundings. The financial situation of the chosen guardian should not, ideally, be a deciding factor as you will need to provide financial resources for raising your children (through life insurance, assets or savings). If you choose your own parents, consider their age and health, thinking about whether they will be physically able to care for your children ten or fifteen years from now. Some parents choose to set up a trust for the care of their children, and often, the person named as guardian for the children is not the same person you choose to handle your finances after your death. In fact, keeping guardianship and financial issues separate can actually make things much less complicated.
Make sure you have discussed the issue fully with the person you choose as guardian for your child, to ensure he or she is willing to serve as guardian. When deciding on a guardian for your child, it can also be helpful to discuss the issue with your California estate planning attorney. Guardianship for your child is an extremely important decision—one you will want to take time to fully consider with an experienced estate planning attorney who can answer any questions you might have about the process. Consider having an alternate guardian named in your will as well, in case your first choice is unable to serve.
What Happens if You Fail to Name a Guardian for Your Children?
If you fail to name a guardian for your child, then the court will make that decision for you. When the court decides on a guardian, they may fail to choose a person whom you would have chosen to raise your child. There could be multiple relatives who are vying to become your child’s guardians, and since the judge does not have access to the same information you had access to, he or she may not be correct when evaluating their character.
You might have one sibling whom you would absolutely not want to raise your children, yet the judge, having no way of knowing this, could very well name that sibling as guardian of your children. If you and the other parent of your children are killed at the same time, there could be disputes between your family and your spouse’s family regarding guardianship and the upbringing of your child. These types of disputes can become hostile and can hurt your child, which is why naming a guardian for your child is so important.
How the Gullotta Law Group Can Help
A guardianship can be complex, which is why it is vitally important that an experienced California guardianship attorney is by your side when you make decisions regarding guardianship. The guardianship attorneys at the Gullotta Law Group have handled these matters for many, many years. We are proud to serve the residents of Sonoma County with all needs related to guardianship matters. We want to help you have peace of mind for whatever the future brings; contact the Gullotta Law Group to secure the future of your child.