[June 1997] — In California, when a child’s parents are unable to care for the child, an adult guardian of the person must be appointed to care for the child. In addition, if a child inherits property, a guardian of the estate must usually be appointed to manage the child’s property.

Guardianship of the Estate

Even if a child lives with one or both parents, a guardianship is generally required if the child inherits property worth more than $20,000. (Smaller inheritances can often be held in a “custodianship” under California’s Uniform Transfers to Minors Act [UTMA], or can be distributed to the child’s parents.)

The guardian must file a petition in the Probate Court. There is a $193 filing fee (waived for those with very low incomes). A bond must also be purchased from an insurance company unless the money will all be deposited in a “blocked account” with a bank or brokerage. After the court appoints a guardian, an inventory and appraisal must be filed, and annual or bi-annual accountings must also be filed with the court until the child reaches age 18.

A guardianship of the estate is not required if a gift or bequest of any amount is expressly made under the “Uniform Transfers to Minors Act” or if the gift is held in a trust. For a list of alternatives to guardianship, see the book “California Conservatorships and Guardianships,” from the California Continuing Education of the Bar (CEB), section 4.12 (at page 144.3).

Guardianship of the Person

In general, a guardianship of the person should be obtained whenever a child is permanently living with someone other than a parent. Historically, this occurred when both parents died, or when one parent died and the other was absent or unable to care for the child. Unfortunately, in our modern society, most guardianships now occur because both parents are alive but are unable to provide a safe, secure home for the child. Occasionally grandparents will seek guardianship because the children’s parents suffer from serious personal problems, including drug abuse and alcoholism.

If a non-parent will care for a child temporarily (for example, if a parent is traveling on business, or has relocated to another city but the child wants to stay behind to finish the current school year), it is not necessary to obtain formal guardianship unless there is a risk that a parent will seek to reclaim custody when this would not be in the child’s best interests. In such temporary situations, the caregiver should have a copy of the Caregiver’s Authorization Affidavit form.

A guardianship of the person can be initiated either in the Probate Court or in the Juvenile Court. Normally, a guardianship only starts in the Juvenile Court if a child has been removed from a home due to abuse or neglect, or has been declared a ward of the court. In all other circumstances, a petition for guardianship of the person is filed in the Probate Court. (A single petition for guardianship of the person and estate can be filed if both are required.)

In most counties, a Court Investigator is assigned to evaluate the proposed guardian and make recommendations to the Probate Judge. In some counties (including Alameda County), a detailed information sheet must be submitted in advance. The investigator also obtains criminal history reports for the proposed guardian, the parents, the children, and other adults living in the proposed guardian’s home.

When a guardian is appointed, the court may impose conditions. One common condition is a requirement that the guardian attend a “parenting class,” since older adults often don’t recognize that the “rules” for disciplining children have changed. Courts sometimes require that grandparent guardians attend a “grandparent caregiver support group,” and I recommend parenting or grandparenting support groups for all prospective guardians. Support groups can be helpful in sharing experiences and tips for dealing with troublesome family members and the common problems that abandoned, neglected, or abused children experience.

If a guardianship is contested, because the parents or others claim that they should be awarded custody of a child, some courts (such as Alameda County) will transfer the case to another department (such as Family Court) better suited to custody disputes.

Do You Need an Attorney to Petition for Appointment as Guardian?

You do not need to have an attorney to file a petition for appointment as guardian. If the petition is uncontested and you are willing to spend the time and energy required to prepare all the court forms, and insure that notices are sent on time to all relatives, you probably will not need an attorney. However, most people make many mistakes when representing themselves, and if this occurs, then hearings may need to be rescheduled and the entire process may take much longer.

Prospective guardians should consider reading The Guardianship Book, published by Nolo Press, and available in most California bookstores. This book discusses the court procedures and forms, and if you follow its instructions carefully, you should not need an attorney unless the guardianship is contested.

There are some situations in which an uncontested guardianship can still benefit from an attorney’s involvement. One excellent example is if the proposed guardian has a history of problems. An obvious question, if the child’s parents are drug addicts, alcoholics, or abusive toward children, is why a grandparent will do a better job raising the grandchildren than they did raising their own children. An attorney can identify reasons why the situation is different (or why the parent’s problems are not the fault of the grandparents), or can suggest strategies to resolve lingering problems. An attorney can also sometimes suggest ways to resolve disputes over visitation without court intervention.

What Does it Cost?

If you will hire an attorney to help you, you should expect to pay hourly fees ranging from $150 to $300 per hour, depending on the attorney’s experience and skill. Depending on the case, your attorney might spend as little as five hours or as many as 20-30 hours working on the guardianship matter. (In very rare cases, an attorney might need to spend many more hours.)

To make clients more comfortable, some attorneys sometimes agree to a flat fee or a maximum fee for representing the guardian, if the case is uncontested and there are no surprises. In such situations, the fee might be as little as $1,000. In addition, the client is responsible for the court filing fee (currently $185) and the Court Investigator’s Fee (currently $450 in Alameda County).

Clients who cannot afford attorney’s fees should contact their local county bar association or Volunteer Legal Services program(telephone 510-893-1031). In general, the court filing fee and court investigator’s fees can also be waived if the proposed guardian’s income is below specified levels.

Where to get more information

If you believe you need to obtain legal guardianship for a child, you should start your research with The Guardianship Book, from Nolo Press. This book is available in most California bookstores for about $25, and in many public libraries.

The California Continuing Education of the Bar (CEB) publishes a much more detailed book for lawyers, called “California Conservatorships and Guardianships.” This two-volume set discusses many issues in more detail, but most non-attorneys will find it less useful than the Nolo Press book.

Both of the above books are available in most public law libraries, which are generally located in or near each California Superior Court branches (including law libraries near the courthouses in Martinez, Oakland, and Hayward). Some very small Superior Court branches (including Pleasanton’s) have very limited libraries that don’t include these books.

You can obtain a “packet” containing the required forms for a probate guardianship from the court clerk’s office. Be sure to ask for all required forms, including the initial filing forms as well as any special forms that must be submitted to the court investigator (in Alameda County, these are two separate packets). The packet will cost several dollars. Alternatively, you can copy the required forms from the California Judicial Council Forms, available in many libraries.