Establishing a Guardianship
A probate guardianship is generally required for a minor when the parents can no longer provide care for their child(ren) anymore. The need for a guardianship may be prompted by the death of the parents, physical illness, military deployment, drug or alcohol problems, or neglect. There are also occasions when a parent may need to petition to establish a guardianship over the estate of their own child. That circumstance generally arises when a settlement needs to be paid to the minor or when the child is going to receive an inheritance or other substantial gift. The person who is appointed by the court to protect the person and or estate of the minor is called the “guardian”. The minor is commonly referred to as the “ward”.
To be appointed guardian, a petition and other documents are required to be filed with the court and set for a hearing. The petition is served on the parents and other relatives and interested persons. After filing the petition, a probate court investigator is required to look into the propriety of the guardianship and who should be guardian. The investigator reports their findings and recommendations to be considered at the hearing. On some occasions, the court may also appoint an attorney to represent the minor.
At the hearing for establishing a guardianship, the judge will consider the petition, the recommendations of the investigator, the input of other family or interested persons, as well as a nomination by the parent(s), if any. The court may also consider the child’s wishes if they have reached the age of 12. Once the matter is submitted to the court, the decision is guided by what the judge determines will be in the best interest of the minor. The guardianship will terminate when the minor reaches the age of 18, unless earlier terminated by court order because a parent has successfully petitioned for the termination.
If appointed guardian of the “person”, you will have the legal custody of the minor and a continuing duty to ensure that the child’s basic needs are met. That includes protecting and safeguarding the child and providing food, clothing, and shelter – as well as securing medical care and educational needs. As guardian of the “estate”, you will manage the child’s financial affairs until the child reaches the age of majority (18 years). The duties of a guardian of the estate include reporting regularly to the court about the status of the ward’s estate. The reporting will usually require a report and account of the minor’s assets that will be prepared, filed and approved by the court every two years.
Establishing a Conservatorship
In California, when an adult is no longer able to make personal and care decisions for themselves or cannot handle their own financial affairs, a conservatorship petition may be brought to establish a conservatorship for protection of the person, their estate or both.
A conservatorship over the “person” is appropriate when that person is unable to properly provide for his or her needs for physical health, food, clothing, and shelter. A conservatorship over the “estate” is appropriate when the person is substantially unable to manage his or her own financial resources or resist fraud or undue influence. If the person is a developmentally disabled adult, a particular kind of conservatorship may be established, called a “limited conservatorship".
The person that is subject to the conservatorship (the person who needs the help) is called a “conservatee”. The person that is appointed by the court to handle the financial and/or personal affairs of the conservatee is called the “conservator”. A petition and other required documents will need to be prepared and filed before the hearing to establish the conservatorship is held. In most cases, the petition must be filed in the county where the conservatee resides. After filing the petition, a probate court investigator is required to look into the propriety of the conservatorship and who should be conservator and then reports their findings and recommendations before the general hearing is held. On some occasions, the court may also appoint an attorney to represent the conservatee.
Depending on the urgency required for the protection of the conservatee, the court will generally hear the petition about six weeks after filing so that required notice to interested persons/relatives can be sent out. If emergency circumstances exist, the court may hear the matter to appoint a temporary conservator on very short notice – to serve as temporary conservator until the general hearing.
Once the conservatorship is established at the general hearing, a conservator’s duties to the conservatee and the court will continue until the conservatorship is terminated by court order. Those duties include making sure the conservatee’s needs such as food, shelter, clothing and medical care are met. The duties also include reporting regularly to the court about the status of the conservatee. If you are appointed as the conservator over the estate of the conservatee, the reporting requirement will usually require a report and account of assets to be prepared, filed and approved by the court every two years.