A typical estate plan is primarily focused on the interests of the estate owner’s loved ones and other beneficiaries. Along with providing guidelines for how assets should be distributed, parents of minor children should make sure to include a legal guardian designation in their estate plans. This will ensure that if the unthinkable happens and both parents pass away, their children will be taken care of by someone the parents trust. If you have questions about nominating someone as a legal guardian in your estate plan, you can learn more by contacting the San Francisco estate planning lawyers with Von Rock Law at (866) 720-0195.
A legal guardian is someone who is designated to take care of a child if their parents pass away or are deemed unfit to continue raising the child. In an estate plan, parents of minor children should make sure to include whom they would like to be named as legal guardians for their children if the parents pass away or become incapacitated and are no longer able to take care of their children.
The role of a legal guardian, which can be either permanent or temporary, is to care for and protect the children under their care. In permanent guardianships, the guardian’s responsibilities apply until the child turns 18. Parents can delineate between guardian of the child and guardian of the child’s estate, who would manage their financed. Guardianships differ from adoptions, as a child living with a legal guardian is not legally considered part of the guardian’s family. This means that they are not granted inheritance rights to the guardian’s estate, while adopted children typically have the same inheritance rights as biological children. However, a legal guardian still has the right to include the child under their care in their estate plan through a will or trust.
Laws regarding pay for legal guardians of minor children vary from state to state. In California, a program called Family Guardianship Assistance Payment (KIN-GAP) provides cash assistance and Medi-Cal (California Medicaid) benefits to eligible children under the care of legal guardians. However, these payments are for the children, not their guardians.
Legal guardians who are family members are eligible to apply for benefits under Cal-Works and Medi-Cal. Unrelated guardians may apply for foster care payments from the state of California and Medi-Cal. A request for these payments and benefits may be made at a local county Health and Human Services office. You can learn more about payments and benefits for legal guardians and children under their care by contacting the San Francisco estate planning lawyers at Von Rock Law.
Under guardianship, the legal guardian has the same legal rights as a biological parent, including the right to make decisions regarding the child’s discipline, education, healthcare, finances, and nurturing. However, the guardian is not legally considered the child’s parent. If the child’s parents are incapacitated and a designated guardian is granted the authority to make these decisions, the incapacitated parents will still legally be considered the child’s parents. When incorporating guardianship provisions into an estate plan, it is important to provide specific guidelines, which the appointed guardian will be required to follow.
If living parents agree to grant guardianship of their children to another party and do not want to go to court, they may sign a notarized letter stating that the guardian will take over custody of the child. This letter should also give the guardian permission to make decisions regarding the child’s healthcare and education. The Judicial Branch of California also recommends including a medical release for emergencies. The parents have the right to cancel this agreement at any time.
Including guardianship provisions in your estate plan is a must, as failure to do so could result in a court deciding who will become the guardian of your children. Courts appoint legal guardians when parents are still alive if they determine that the parents are incapable of raising their children, for any of several reasons. There are a number of common scenarios in which a court makes this decision:
- The parents are currently unable to raise the child and the court as decided that someone else should be given these responsibilities
- Parental rights were terminated by a court and the other parent is unavailable
- The parent will be far away for a long time or is in the army
- The parents are seriously ill, incapacitated, or unfit for raising the child because of neglect, abuse, addiction, or domestic violence in the household
- One parent is incarcerated and there is no other parent available to care for and raise the child
A legal guardianship designation should be included in a Last Will and Testament or may be established through a standalone Nomination of Guardian. When named in a will, a probate court appoints the guardian in accordance with the provisions established in the will. For cases in which a child requires a legal guardian during their parent’s lifetime, the parent or another interested person is required to file a petition to have the court appoint a guardian if there is no standalone Nomination of Guardian.
Individuals who wish to become legal guardians through a petition requesting the court to appoint them as the child’s legal guardian during the parent’s lifetime must follow these steps:
- Fill out and file a petition using California’s official guardianship documents.
- Provide guardianship papers to interested people, including both parents, foster parents if applicable, social services, the person the child is currently living with, and the child if they are older than 14.
- Prepare for court by gathering evidence, such as written permission and the child’s birth certificate.
- Allow home inspections and be prepared for meetings with doctors, therapists, and attorneys.
- Appear at the hearing with the child.
- Wait for an official decision from the court
Guardianship provisions are an estate planning must for parents with minor children. If you have questions about naming a legal guardian or any other estate planning matter, the dedicated San Francisco estate planning lawyers at Von Rock Law may be able to help. Contact us today at (866) 720-0195 to learn more and schedule your personal consultation.