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Guardianship


Caring for a Minor when Parents Can't

Guardianship is a court proceeding in which a judge gives a responsible adult custody of a minor child, power over the child's estate, or both. Guardianships are often handled in probate court, but if a child is a dependent of the juvenile court, only the juvenile court may appoint a legal guardian for that child. Both types are discussed briefly below, although the resources in this guide primarily address probate guardianships.

BASICS

Probate Guardianship

There are two types of guardianship of a minor child: guardianship of the person and guardianship of the estate (property). One guardian can be responsible for both the child and the child's estate. A guardian of the person is responsible for the child's care and welfare when there is no parent willing or able to do so. The judge may appoint a guardian based on nomination or the parents' wishes; petition(s) for appointment of guardianship; court investigations; the child's wishes (if 12 or older); and, ultimately, the child's best interests. Since a guardian has the legal right to make decisions on behalf of the child, compliance with statutory requirements is very important. After notice is given to other relatives or persons of interest, a court investigator will conduct interviews and submit a recommendation to the court. The court will hold a hearing in which the judge may or may not appoint a guardian, depending on the child's best interests. 

Juvenile Dependency Guardianship

When a child becomes a dependent of the court, a guardianship is possible depending on the particulars of the child's case, the child's needs, and at what point in the case the petition for guardianship is filed. After a child is taken from his or her parents, the juvenile court holds hearings every six months to evaluate placement options. Delinquency cases work in much the same way. To ask the court for guardianship of a dependent of the court, you may talk to the social worker or probation officer in charge, or write a letter to the juvenile court judge, describing your relationship with the child, how long you've known the child, and your reasons for seeking guardianship.

SELF HELP

These books are highly regarded "plain English" explanations of the law, written by attorneys or other legal experts. They include basic legal discussion and procedures, forms with instructions, and models of other documents that may be required. Many of the books have CDs that supplement the text and provide interactive forms. You can find these titles in the Library's Self Help Collection.

The Guardianship Book for California KFC 134 .B76
Electronic Access: From any computer (library or home) via the Legal Information Reference Center. Instructions are available on our website at http://www.saclaw.org/pages/nolo-ebooks.aspx.

Manual for Grandparent-relative Caregivers and their Advocates: with a Special Section on California Resources  
KFC 1181 .5 .P54
Electronic Accesshttp://www.prisonerswithchildren.org/pubs/gpmanual.pdf 

LEGAL ENCYCLOPEDIAS and LAW SUMMARIES  

California legal encyclopedias and law summaries provide a summary of California law on specific topics, including guardianship. These materials include references to applicable statutes and cases. Attorneys and people representing themselves may find these resources useful. 

California Jurisprudence (Cal Jur) Third KFC 80 .C35 (Ready Reference)
Topics within the "Guardianship & Conservatorship" chapter include general principles, establishment, termination, and other protective proceedings.
Electronic Access:  On the Law Library's computers, using WestlawNext.

Witkin's Summary of California Law, 10th Edition KFC 80 .W57 (Ready Reference)
Chapter 21, section 17: "Guardianship & Conservatorship" topics include appointment, termination, and annual status reports.
Electronic Access:  On the Law Library's computers, using WestlawNext.

PRACTICE GUIDES

Although practice guides are written for attorneys, people representing themselves may also find these resources useful. These materials provide more detailed information than the self-help books.

California Guardianship Practice  KFC 134 .C35  
Electronic Access:  On the Law Library's computers, using OnLAW

California Juvenile Dependency Practice KFC 1196. C35
Electronic Access:  On the Law Library's computers, using OnLAW.

FORMS

Formbooks contain samples and examples of documents and forms used in guardianship proceedings. Some formbooks include copies of completed documents and instructions for guidance in completing these papers.

California Forms of Pleading and Practice, Annotated KFC 1010 .A65 C3 (Ready Reference)
Volume 24 contains Chapter 280, "Guardianship and Conservatorship: Appointment," to Chapter 290, "Guardianship and Conservatorship: Termination."
Electronic Access:  On the Law Library's computers, using the Matthew Bender CD.

California Legal Forms Transaction Guide, Chap. 66, "Guardianships."  KFC 68 .C32 (Ready Reference)
Electronic Access:  On the Law Library's computers, using Matthew Bender CD.

Law Office Procedures Manual KFC 77 .L44 Chap. K, "Conservatorships." 

West's California Code Forms, with Practice Commentaries: Probate KFC 30 .W482 P76 Chapter 4, Guardianship, Conservatorship, and Other Protective Proceedings
Electronic Access:  On the Law Library's computers, using WestlawNext.

California Judicial Council Forms are available:
On the Internet at http://www.courts.ca.gov/forms.htm (Select "Probate – Guardianships and Conservatorships" from the drop-down menu)

Sacramento County Local Forms are available:
On the Internet at http://www.saccourt.ca.gov/forms/forms.aspx#probate

STATUTES and COURT RULES

(A) Statutes

California's Probate Code, sections §1400 through §1611, contain California's Guardianship Law. Sections §1400 through §1490 contain provisions common to both guardianships and conservatorships. The current un-annotated (just the statutes without editorial analysis by the publishers)Probate Code is online at www.leginfo.ca.gov/calaw.html. Mark the box next to "Probate Code" and click on "Search" for a hyper-linked table of contents. Alternatively, use the print annotated code volumes on the shelf at The Law Library:

Deering's California Code Annotated KFC 30 .5 .D4 P76 (Compact)

West's Annotated California Codes KFC 30 .W48 P76

(B) Court Rules

Guardianship proceedings in California are governed by the California Rules of Court. Most California counties, including Sacramento, also have local probate court rules. The state and local county court rules are available at the library in print and for free on the Internet. 

California Local Probate Rules KFC 205 .A4 

California Rules of Court: State KFC 992 .A31  

Court Rules KFC 992 .A21 (Reference) 
Contains all California local court rules.

All California State Court rules are available at the California State Courts' website at http://www.courts.ca.gov/rules.htm

WEB SITES

How to Establish a Guardianship
http://www.scscourt.org/self_help/probate/guardianship/guardianship_home.shtml
An informative guide on probate guardianship by the Santa Clara County Superior Court. 

Juvenile Court  Guardianship
http://www.courts.ca.gov/1206.htm
Published by the California Courts Self-Help Center.

Guardianship: Probate Court
http://www.courts.ca.gov/1023.htm   
Published by the California Courts Self-Help Center; also available in Spanish.

Guardianships
http://saccourt.ca.gov/probate/guardianship.aspx
Published by the Sacramento Superior Court.

 

Updated 8/13 kb