October 21, 2010

Guardianship of a Minor

A probate guardianship is a judicial process in which a guardian is appointed to protect the minor's estate or person or both. Prob C § 1510. A minor is a person who is under the age of 18. Fam C § 6500.

A probate guardianship appointment can be undertaken when (1) a responsible relative or friend is already caring for a minor whose parents have passed away deceased, are habitually absent from parenting, incapacitated or incarcerated, and (2) the relative or friend is willing to assume legal obligations for caring for the minor, without adoption, and the parents either do not oppose the appointment or parental custody would be harmful to the minor.

The person petitioning for the guardianship can apply to be the minor's guardian of their person or estate, or both. The following paragraphs explain what each guardianship entails.

A probate guardian of the person is responsible for (Prob C §§2351-2353):

1. Determining where the minor lives;
2. Making sure that the minor is properly fed, clothed and sheltered;
3. Supervising the minor's conduct;
4. Making sure that the minor is enrolled in school; and
5. Making sure that the minor has proper medical care.

A probate guardian of the estate has a duty to:

1. Control and preserve estate property (Prob C §16006);
2. Segregate guardianship estate property from other property including the guardian's own personal assets (Prob C §16009);
3. Avoid conflicts of interest, including:
a. Using or dealing with estate property for personal profit (Prob C §16004);
b. Taking part in any transaction in which the guardian has an interest adverse to the minor's; and
4. Hold the minor's property for the minor's benefit until the minor reaches 18 years of age.

The minor's guardianship of their estate or person or both lasts until the minor reaches the age of 18 or when good cause is shown that the guardianship is no longer in the minor's best interest. Prob C § 1600(a); Prob C § 1601.