| Diane M. Brown, Esq. |
Diane M. Brown
14103 Winchester Blvd.,
Suite G
Los Gatos, CA 95032
Tel: (408) 376-2755
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GUARDIANSHIP FOR A MINOR
I. What is a Guardian?
A guardian is someone acting for a minor (a person under the age of eighteen in California). The parent must know what the guardian's role is In order to chose a Guardian.
| A. |
Guardian of the Person
A Guardian of the person of a minor has responsibility for the care and feeding of a minor where neither birth parent is able to act as parent. Typically the minor will live with the guardian of the person. |
| B. |
Guardian of the Estate
A Guardian of the estate manages the money for a minor. A guardian of the estate is necessary if a minor receives a gift or inheritance over $5,000 and there is no other arrangement for the management of the money. (See alternatives below). A parent may be a guardian of the estate when the minor inherits from someone else. |
II. Factors to Consider in Choosing a Guardian.
| A. |
Should the same person be both?
The advantage of having the same person be both is also the disadvantage. If the same person is taking care of the child and managing the money, then there is no need to make periodic requests for support to another person. However, there is no check or balance to the actions of the guardian. |
| B. |
Guardian of the Person
Before naming a guardian of the person a parent should consider the following factors:
- The age of the guardians, their belief systems, style of parenting;
- Potential impact upon the guardian’s family members;
- Will your child have to change schools, city, state?
- Age of your child and his or her preferences.
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| C. |
Guardian of the Estate
Factors to consider in naming a guardian of the estate.
- Good money manager;
- Honesty, integrity and ability to be fair.
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III. The Effect of Naming a Guardian
The parents nominate a guardian either by will or some other writing. The nomination by a parent of a guardian is considered very persuasive. The presumption is in favor of the nominee. However, a Court actually appoints the guardian by signing an order and issuing a document called “Letters of Guardianship”. If the parents have not named a guardian, then the Court will appoint a guardian following the order of priority set out in the Probate Code.
III. Alternatives to Guardian of the Person
When neither birth parent is able to parent a minor it becomes necessary for someone to have authority to care for the child, deal with school issues and medical insurance. Sometimes Guardianship Authorization is sufficient. This is a form that both parents sign to authorize a third party to take temporary custody of a minor. If the birth parents are not available to sign the Guardianship Authorization, then the person having custody of the minor may complete a Caregiver Affidavit. If these documents do not work, then the caregiver will need to go to court to obtain legal custody. (Genia: form links to these forms. I hand them out for no charge)
IV. Alternatives to Guardian of the Estate
Simply naming a guardian of the estate in a will or trust means that the guardian will be under Court supervision until the child attains the age of eighteen. Consequently there will be ongoing court costs and attorney’s fees. A guardian of the estate is managing money for the minor and is required to file accountings every two years. The guardian must either deposit the money in a blocked account or pay for a bond. There are several alternatives that will keep the money from the minor until an older age and manage the money without court supervision.
| A. |
California Uniform Transfers to Minors Act
The California Uniform Transfers to Minors act is covered by a separate section of the Probate Code. There is no need for Court involvement. A custodian is named to manage the money for the child. The Custodian can pay to or apply for the benefit of the child so much of the money as the Custodian believes appropriate. The parent can specify the age at which the Custodian is to release the balance of the money to the child. Sample language:
“I give (sum, %, share) to (name of custodian) as Custodian under the California Uniform Transfers to Minors Act to hold for the benefit of (name of child) to the age of (choose any age from 18 to 25).” Note that gifts during the lifetime of the donor may be to the age of twenty-one while gifts at death of the donor may be held to the age of twenty-five. |
| B. |
Trust for Minors
If the amount of money to be handled for the child is large, the parent may wish to consider a more structured form, such as a trust. A parent or any other person can establish a trust for minors. The trust document will control the distributions of money to the child. For example, a trust may provide for distributions of principal at certain ages. One-half at twenty-five and the remainder at age thirty is a common choice.
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