Guardianship For Minor Children
Whenever a guardian is needed for a minor child, a court order is needed to appoint such a guardian. While parents can make nominations of guardians, a court will ultimately make the decision based on “the best interests of the child” at that time. Also, as children grow older and are better able to express their preferences, the court will take the minors wishes into account.
There are two types of guardianship, Guardianship of the Person and Guardianship of the Estate. While often times there is just one person that serves as both the guardian of a minor’s estate and person, it is not uncommon for there to be different people appointed. Sometimes, the person that is best with a child is not someone the child’s parents want managing the child’s inheritance. Sometimes parents want a greater level of oversight and control over who will be in charge of their child(ren)’s inheritance.
Guardianship of the Person: This is what most people think about when they think of a guardianship as the Guardian of the Person is authorized to make legal and healthcare decisions for the minor, as well as decisions related to the child’s wellbeing, school, and general living. In general, courts want to minimize the disruptions to the status quo of the minor’s life, so a plan that takes this into consideration is much more likely to have success if it needs to be put into action.
Guardianship of the Estate: Under California law, there are restrictions on minors legally owning property; and while there might be ways for a minor to legally own, there are going to be problems with third-parties since a minor does not have the legal ability to enter into a contract on their own (or more precisely, a contract entered into by a minor cannot be enforced against the minor – but the minor could still enforce the contract against the other party). The need for a Guardian of the Estate usually occurs when a minor is to receive an inheritance and the third-party holding the inheritance will require the appointment of a Guardian of the Estate before releasing the property.
When parents create a living trust for the benefit of a minor child(ren), and there is no money being inherited by the minor child(ren) from some other source (like grandparents), then there is no need for a guardian of the estate (as the trustee of the parents’ trust will basically serve the same purpose).
Guardians Living in Another State or Country: Courts don’t like to make order that cannot be enforced, and it is difficult for courts in the U.S. to enforce their orders in another country. It is also rather difficult for a court in California to enforce orders over people once they leave the state. Because of these reasons, it is usually recommended for the minor to travel to the jurisdiction of the proposed guardian(s) who can then petition a court in that state or country for guardianship; however this can be easier said than done.