California Estate Planning Attorney Blog

A guardian takes care of a child's personal needs, including shelter, education, medical, and financial management for a child's assets. A guardianship allows a non-parent adult to have a legal relationship with a child. The child continues a legal relationship with the child's biological parents. The biological parents are still legally required to provide financial child support, and if a biological parent dies without a will, the child has intestate succession rights. Contrast with an adoption, a guardianship does not permanently require the biological parent to give up parental rights and obligations to the child.

A guardianship ordinarily lasts until the earliest of these events:

•child reaches 18
•child dies
•child's assets are used, or
•judge determines a guardianship is no longer necessary.

If a guardian no longer wants to serve, the guardianship may continue with a judge appointing a replacement guardian.

Sometimes parents need to establish guardianship for their own children. A guardian ad litem is a person appointed by the court to stand in place of a minor in a court proceeding in which the minor has some interest such as a divorce or custody. The court can appoint a guardian ad litem for an adult who isn't able to make decisions alone. The guardian ad litem may be a parent, close relative, or attorney. The guardian ad litem may investigate possible problems that could harm the child, such as drug or alcohol abuse or the battering of a spouse.

Another situation when a parent establishes guardianship for their own children is when the child has finances to manage. For example, the child star who has assets over $5000. A guardianship of the estate allows a parent to handle his own child's finances. The parents are accountable to a court to show how funds are spent and invested.

Continue reading "Guardianships in California" »

Today's entry completes the article about legal guardianship that I have begun last Thursday (see here).

The guardian is only loosely supervised by the probate court, so the guardian should be chosen wisely. The wish for a specific guardian can be contained within the last will or within a separate letter. The legal appointment of a guardian is done by a judge of the probate court. Technically the judge is not bound by the written choice of the parents, but in almost all cases a written choice of the deceased parents is honored. Judges give people who are expressly nominated priority over anyone else.

The ideal guardian for your kids should be the person who has the most advantages compared to everyone else. Most people have to compromise though, because perfect guardians are very rare. A perfect guardian should have good parenting skills like patience and a sense for humor. Money is also an issue if you want your children to be raised in a stable environment. Another major advantage is if the virtual guardian lives nearby. That way your children don't have to move far from their friends if the guardianship should ever become real. Finally it is usually good if a prospective guardian lives a healthy lifestyle and values education. If a guardian a is chosen who fulfills some of these criteria, a judge shouldn't object the nomination of the guardian.

When the nominated guardian is needed, the nomination procedure at the probate court needs to be filed. You do not generally have to have a lawyer. But, it takes quite a bit of time and energy to fill out the court forms, because the forms and rules for notice are complicated. Most people make mistakes that can lengthen the procedure. A family or estate planning lawyer can help you to present your case to the court, especially if one or both parents object to the guardianship. It is also a good idea to consult a attorney if the child has property with a lot of value, you live out-of-state or the child has special needs.

Continue reading "About Guardianship (Part II)" »

Estate Planning is not only about financial matters. Sure, setting up a living trust to avoid costly probate proceedings is important and should not be neglected. I have already stressed that on our website. If you need advice in how to set up a living trust, you should read the firm's learning center first.

Estate planning is also about practical things of daily life. Especially young families with minor children will have to incorporate measures into their estate plan to ensure that one is taking care of the children if both parents die or become incapacitated. The legal instrument to fulfill this purpose is the nomination of a legal guardian.

Technically there are two types of legal Guardianship: First guardianship of the person which means the guardian has custody of the child and second guardianship of the estate which means the guardian manages the child's income, money or other property until the child turns 18. In most cases one guardian serves for both purposes.

A legal guardian has the same right and the obligation to care for a child as the child's parents. Until the child turns 18, the guardian is responsible to provide all the child's needs, like food, education or medical care. Also the legal guardian is responsible for any legal relevant misbehavior of the child after the parents have passed away.

The article will be continued on Saturday, Dec 5.

Estate planning is not a one-time affair. Life changes over time and so should your estate plan. Last week I've already posted a link to a list of events, that should trigger a revision of your estate plan. An article by G.M. Filisko now follows a timeline-based approach to the same issue. He identifies 8 stages in an ordinary life that each requires adjustment of your estate plan.

Beginning at the age of 18 everyone should have a durable power of attorney, a health care proxy, a HIPPA release and eventually a living will. Also as soon as a young adult acquires property, a will or a living trust is also a good thing to have (we have outlined all of those estate planning instruments on our firm's website. In this first stage usually the parents fulfill the role of a beneficiary and caretaker in case that something serious happens to the young adult.

Sooner or later you will usually commit yourself into a serious relationship and finally become married. As a grownup you have to think about a prenuptial agreement and also about a major revision of your estate plan. If you have not done it at this point, you should definitely do it now. If you've an estate plan in place, marriage is the time to let the spouse take over the part, which so far has been fulfilled by your parents. Also one can think about buying life insurance.

Things change again with every child you will be blessed with. You should appoint a legal guardian for the case that something serious happens to you and revise all your estate planning instruments to match the new situation.

In the unhappy event of divorce also estate planning also has to be adjusted. Finally, when you advance in age, hopefully without worries, you will have to think about long-term care insurance and check your estate plan whether it still reflects your wishes.

The timeline-approach shows that estate planning accompanies you during your whole life.

Continue reading "Estate Plan Adjustments" »

I've come across an interesting article in the Contra Costa Times, written by Laura Casey. Using the example of a recently widowed mother of two young sons, the author explains the importance of naming a legal guardian for children.

It is of course a very difficult decision to make, but an important one. If you don't name a legal guardian for your kids, the probate court is going to do appoint a guardian of its choice as soon as both parents die. The decision of the court may or may not be what the parents would have opted for themselves. Therefore it is always a good idea to name the legal guardian in advance even though the thinking about such a topic feels awkward. In most cases the court will follow the decision of the parents and presume that the parent's wish is in the interest of the child.

The decision for a specific person as a guardian is complex. Family values, religion, race and culture and a possible relocation can play a major role. Often a lot of thinking is required to find out the right person to be the kids guardian. The guardian should also be informed of the choice and agree to it, because nobody can be forced to be a legal guardian.

Usually a legal guardian can be named in an ordinary letter, within the declaration of a living trust (although this is not always recommended), or within the will (see my website for further reference). Because its importance it is always useful to contact an estate planning lawyer in this issue. The consultant will not only check if the naming of the guardian was done in the right way but also assist you in other estate planning matters.

Continue reading "Naming of a Legal Guardian for Children" »