Guardianship and Conservatorships
“Helping Children in Crisis”
Nothing touches my heart so much as a child who is suffering. Many things can happen to cause a child’s parent or parents to become unable to properly take care of a child: illness, the loss of a job, drug addiction, going to jail, and even death. What do we do then? Should we have the state take the children away and place them if foster homes with strangers? That sometimes happens. Fortunately, the law offers another remedy, and that is to have a relative of the child become the child’s guardian.
There are two types of guardianship: “Guardianship over the Person” and “Guardianship Over the Estate.” The most common is the guardianship over the person, which we will discuss first.
There are two stages in a guardianship: “temporary” and “permanent”. These terms are a bit misleading because no guardianship is truly “permanent”. Guardianships, by their nature, are intended only to help a child through a temporary time of difficulty.
A “temporary” guardianship is most often used to assist a child on an emergency basis. For example, if a child’s only parent is suddenly arrested for a crime and held in jail, another extended family member may need to immediately step in and act as guardian over the child until the real parent is released. When a temporary guardianship is established, the court sets a review date to see if the emergency has passed. If it has not, and it looks like the child needs a longer-term guardianship, then a “permanent” guardianship will be established. The “permanent” guardianship will continue indefinitely until the real parent asks the court to terminate it and the court grants it. As you can see, even in a “permanent” guardianship, the door is always open for the real parent to end it and get the child back.
If a guardianship is brought about by the death of a parent or the permanent unfitness of a parent, some guardianships will last for years (and sometimes even until the child turns 18) if no one takes any action to terminate it. California, however, favors permanent placement of children, and so adoption is usually preferred in such cases. Guardians therefore sometimes wind up with having to make a decision about whether or not to adopt a child.
In some circumstances, the guardians really want to have the child permanently. If that is the case, they may need to consider bringing an Adoption Petition or even a Child Dependency Petition in addition to a Petition for guardianship. Adoption and child dependency are very different in nature, and careful thought must be given before trying either one. Each one has its own benefits and risks.
What if someone has become a guardian over your children against your will? As a natural parent, your rights are very strong, even in a guardianship case. Certainly you must demonstrate that your children will be safe and secure with you, but if a guardianship has been established unfairly or you suspect that the guardians really intend to permanently take the children away no matter what you do, then there are steps you can take to ensure that he court will return your children to you.
A “guardianship over an estate” means that the guardian only seeks to have control over property. This can happen in various types of circumstances, such as when a child’s parent squanders a child’s inheritance. The court proceedings are much the same as in a guardianship over a person, except that he children do not always wind up living in the guardian’s home since it is only their property that is being managed by the guardian. Sometimes a guardianship over an estate can be troublesome to the guardian because the guardian has a fiduciary duty to properly manage the estate and keep good records. Sometimes the court will require the guardian to submit periodic accounts with documents. A person seeking a guardianship over an estate should therefore be prepared for this extra burden and liability.
A guardian is just what the term implies: a person who stands ready to protect a child in time of need. It is a worthy undertaking, but one that should never be abused.
(Note: Laws vary from state to state. The legal discussions contained herein are general in nature, but some of the concepts apply only to California law. The law in your state may be different. You should never attempt to analyze the legal ramifications of your own case. Always consult an attorney immediately if you believe you may have a legal problem).
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