Encinitas,
San Diego County
Practice Areas - Guardianship

What is a Guardianship?

Guardianships are created when the Court appoints a Guardian to ensure there will be someone to care for minor children, less than 18 years of age, if the natural parents are no longer able to do so.  There are Guardianships of the Person and Guardianships of the Estate.

 

How do you designate Guardians?               

A Guardian is typically nominated in one’s Will.  The nominations in one’s Will provides guidance to the Court for whom to actually appoint as the child’s Guardian.  Once the child reaches 18, the Guardianship will terminate.  Even if one’s estate is not large enough to concern them with Probate or Trust Administration fees, a basic Will could still provide the ability to nominate Guardians for their children.     

 

What is a Guardianship of the Person?

A Guardianship of the Person deals with legal custody of the child.  It allows the Guardian to legally do the things that parents typically do.  This is what gives the Guardian the ability to enroll a child in school or seek medical treatment for the child. 

If both parents predecease their minor child and there is no guardian nominated, relatives and non-relatives can petition the court to establish a guardianship over the child.  This could result in maternal and paternal sides of the child’s family competing for custody of the child. 

Guardians of the Person are required to report to the Court annually so the Court can establish that the Guardian still has the ability and means to care for the minor and for the minor’s progress to be monitored. 

 

What is a Guardianship of the Estate?

A Guardianship of the Estate addresses how assets left to a minor will be supervised until the minor reaches the age of 18.  Guardianships of the Estate have mandatory court reporting requirements.  On one hand this is a good thing because it requires the Guardian of the Estate to maintain accurate accounting records and report that information to the Court on an annual basis.  If the Guardian was doing a poor job or taking advantage of the minor’s resources, there would be Court supervision that could detect such activity. 

The down side to a Guardian of the Estate is that it does require constant Court reporting.  Many times Guardians have been selected because of the great deal of trust a family has in them.  Their life will already be altered by the additional responsibilities of taking care of a new child.  Adding even more responsibilities, especially trips to Court, could make an already difficult job even more demanding.

 

Are there Alternatives to Guardianships of the Estate?

There are alternatives to Guardianships of the Estate.  These alternatives can be attractive when contrasted with the amount of Court supervision required with a Guardianship of the Estate and the additional requirement that all funds must be distributed to the minor once they reach the age of 18. 

A Trust can be established to manage the child’s financial resources.  Accountings are required with the Trust, but trips to Court are not mandatory like the Guardianship of the Estate requires.  Accountings are good because they help keep track of where and how the child’s money is spent.  Trusts also enable parents to delay the distribution of the Estate to an age beyond 18, which can be a good thing to help ensure the child receives the money when they are financially mature.

The California Uniform Transfer to Minors Act (CUTMA) is another option instead of a Guardianship of the Estate.  This method requires that a custodial account be created for the minor, but it does not have the Court supervision of the Guardianship of the Estate, nor does it have the accounting requirements of a Trust.  The Custodian of the account is still bound by fiduciary duties.  Another feature of CUTMA is that distributions to the minor are not mandatory at 18.  Distributions can begin at 18 or can be delayed until the child reaches the age of 25, when full distribution is mandatory.  


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