Michael never expected his sister, after a sudden illness, would be unable to care for her children. Without a nominated guardian in place, the children were temporarily placed with Child Protective Services while a lengthy court battle ensued between extended family members, costing thousands in legal fees and causing immense emotional distress.
How does Guardianship differ from Custody?
Many people mistakenly believe that custody automatically covers situations where parents are unable to care for their children. That’s not always the case. Custody is a family law issue, determined during divorce or separation proceedings, focusing on the day-to-day care and control of a child. Guardianship, however, is a probate court matter that steps in when parents are incapacitated, have passed away, or are otherwise unable to fulfill their parental duties. While both involve the care of a minor, the legal framework and triggering events are very different.
Custody focuses on parenting rights and responsibilities between parents. Guardianship appoints someone to act on behalf of a minor, managing their care and assets if the parents are unavailable. It’s crucial to understand this distinction, as a custody order doesn’t automatically grant authority to a relative if a parent becomes incapacitated.
What happens if a parent becomes incapacitated without a nominated guardian?
Without a designated guardian in a will or trust, a family member must petition the probate court to be appointed. This process can be costly, time-consuming, and emotionally draining. The court will investigate the potential guardian’s background, financial stability, and ability to provide for the child’s best interests. The court may even appoint a professional fiduciary if they don’t believe a family member is suitable. If a parent is incapacitated unexpectedly, without prior planning, the child may temporarily be placed in the care of Child Protective Services until a guardian can be appointed.
As an Estate Planning Attorney and CPA in Temecula, California, I frequently advise clients about the importance of nominating guardians, not just for minor children, but also for managing potential inheritances. If a minor inherits assets exceeding $5,000 (or the estate is over the $208,850 simplified threshold effective April 1, 2025), a court-supervised Guardianship of the Estate is generally required. This is separate from the physical custody aspect of guardianship, but it’s vital to consider both.
What are the different types of Guardianships?
There are generally two main types of guardianships: Guardianship of the Person and Guardianship of the Estate. The Guardianship of the Person deals with the child’s physical care, education, and well-being. The Guardian of the Person makes decisions about where the child lives, attends school, and receives medical care. The Guardianship of the Estate manages the child’s financial affairs, including any inherited property or funds. A single person can serve as both Guardian of the Person and Guardian of the Estate, or these roles can be divided between different individuals.
- Guardian of the Person: Responsible for the child’s daily care, education, and health decisions.
- Guardian of the Estate: Manages the child’s finances and property.
- Limited Guardianship: Grants the guardian specific powers, tailored to the child’s needs.
I often advise clients to consider a trust as an alternative to guardianship, especially for managing assets. A trust can provide more flexibility and control over how the assets are used and distributed. However, a trust doesn’t address the personal care aspects of guardianship, so it’s often best to combine a trust with a nomination of guardian in a will.
What responsibilities does a Guardian have?
A Guardian has significant responsibilities, including providing for the child’s physical and emotional needs, making educational and medical decisions, managing the child’s finances (if also Guardian of the Estate), and reporting regularly to the court. Guardians must act in the child’s best interests at all times and are held to a high standard of care. They also must be aware of laws like RUFADAA; a guardian cannot legally access a minor’s social media or email to protect them from cyberbullying without specific authority. Furthermore, if the minor attends public school, the guardian must legally establish their status to access school records under FERPA and make Individualized Education Program (IEP) decisions.
My CPA license allows me to provide specialized fiduciary accounting services for minor’s inheritances. I can accurately track income and expenses, prepare tax returns, and ensure that the assets are protected until the child reaches the age of majority. This is especially important given that guardians managing substantial assets must plan for the Jan 1, 2026 tax law changes, as the ‘Kiddie Tax’ rules and estate exemptions will shift significantly.
| Feature | Custody | Guardianship |
|---|---|---|
| Triggering Event | Divorce, Separation, or Parental Rights Dispute | Parental Incapacity, Death, or Absence |
| Court Jurisdiction | Family Court | Probate Court |
| Focus | Parenting Rights and Responsibilities | Care and Management of a Minor |
Planning for the future care of your children is one of the most important things you can do. Don’t wait until a crisis occurs. Contact my office today to discuss your options.
California Probate Code § 1500 (Guardianship)
How do you move forward with confidence in your estate-planning goals?
The concept of guardianship extends beyond just daily care; it dictates where your children will live, where they will go to school, and what religious upbringing they will receive. Failing to name a guardian is essentially rolling the dice on your children’s future. By formalizing your choice now, you provide a safety net that ensures stability and love, no matter what happens to you. For vital information on permanent guardianship, explore our post on ensuring long-term care for children to facilitate the process. Protecting your children requires more than just a name in a will; it requires a structure that safeguards their emotional and financial well-being. As both an attorney and CPA, I help parents create guardianship plans that not only appoint a caregiver but also protect the inheritance from mismanagement or court fees. Do not leave your children’s future to chance—contact our office today to secure their safety.
About Steve Bliss: An estate planning attorney in Temecula
THe Law Firm of Steven F. Bliss Esq. is a dedicated legal firm serving Temecula, Riverside County, and the Inland Empire. Led by Steven F. Bliss, the firm offers a unique advantage: Steve is an experienced CPA & Estate Planning Lawyer.
Whether the court requires a formal probate or allows for an unsupervised process, having a skilled attorney is essential to avoid delays. Don’t face the costly and confusing legal process alone—call attorney Steve Bliss today.
Visit The Law Firm of Steven F. Bliss Esq:
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The Law Firm of Steven F. Bliss Esq.43920 Margarita Rd Ste F
Temecula, CA 92592
(951) 223-7000