Probate guardianship of the estate is the appropriate judicially supervised proceeding for the management of a minor's estate and the minor needs money during minority for support and/or education.

Probate guardianship of the person is the appropriate judicially supervised proceeding for the person if in the four common scenarios and no alternatives apply or are appropriate and there is a responsible friend of family member who is already caring for the minor and the relative or friend is willing to assume legal responsibility for the minor without adoption and the parents either do not oppose or parental custody would be detrimental.

The four common scenarios are orphans, preventing abuse or neglect, if the child has resided in the home of and has bonded with a non parent adult and for a technical change in custody.

The rules, practice and procedure in guardianship are always changing. Pursuant to the Ominbus Conservatorship and Guardianship Reform Act of 2006, the following are a partial list of some significant changes. It is essential to use a licensed attorney who has experience in guardianship and continues to be current with the law and procedure. Effective July 1, 2007, a copy of the petition for appointment of a guardian must be included with the notice of hearing when establishing a guardianship. Effective July 1, 2007, the Court has the authority to review all books and accounts and remove immediately a guardian which has committed serious mistakes. Effective July 1, 2007, every guardianship account is subject to discretionary review by the court. Effective January 1, 2008, no ex parte communications are restated. Effective July 1, 2008, all professional fiduciaries must be licensed by the Department of Consumer Affairs. In addition, there are new mandatory accounting forms being prepared by the State of California Judicial Council. In addition, CalWORKS has replaced AFDC. There will be many more changes in the coming months and years and only an experienced and up to date attorney will be able to most effectively protect your rights and try and obtain your goals.

There are several alternatives to a guardianship and these are listed below. In the analysis of whether to incur legal fees, costs and the time of litigation these should be considered fully. Only a licensed attorney who is experienced will be able to assist. These alternatives include custody proceedings in family law court, dependency proceedings in juvenile court, delinquency proceedings in juvenile court, adoption proceedings, emancipation of minors, care giver's authority to enroll in school and authorize medical care, minor's consent to medical treatment and minor's application to the court for marriage or to enlist in the armed forces, management of the minor's estate by other methods which do not include a court order or guardianship, a petition to the court for an order directing investment of minor's money belonging to the minor, compromise of a disputed claim and court approval with compromise of money. This is not an all inclusive list and only the most common alternatives.

Service of pleadings is always an issue in any proceeding and this is very true with guardianship. Many times personal service is mandatory and there are strict time periods to accomplish this. In addition, the use of mandatory judicial council forms is always difficult as these are updated and changed on a frequent basis and submission of the wrong or outdated form for filing can cause the Court Clerk to reject the pleadings and return rather than file. This can create additional delays in the case.

There are instances when a temporary guardianship may be applicable. This is when the minor needs immediate medical treatment due to injury or illness, the minor needs to be enrolled in school and both parents are deceased, absent, incarcerated or incapacitated. This is also applicable when the minor needs immediate protection from child endangerment or the minor's custodial parent is also a minor who is in custody. There are many factual scenarios and only an experienced and licensed attorney can give you proper advice.

Contact Us Online or call us at 877-HELP411 [877-435-7411] in Southern California or 858-618-5510 or e mail us. We will be pleased to offer you a complimentary and confidential in-house consultation up to a length of 30 minutes to discuss strategies and techniques to assist in protecting your rights and trying to obtain your legal goals.

San Diego Estate Planning Lawyer Blog: Guardianship
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