GUARDIANSHIP

Published on: August 22, 2016

How California Probate Guardianships for Minors Work

If you have minor children, it is important to consider the estate planning implications of providing for them before they reach the age of 18. If you leave your children a substantial inheritance, it will be necessary to name a guardian for their estate until they reach the age of majority. A guardianship of the “estate” is separate from a guardianship of the “person.” The latter refers to the person who has physical custody of the child and oversees his or her daily care. A guardianship of the estate, in contrast, only deals with property owned by the minor child.

Family Member or Professional Fiduciary?

In many cases, a guardian of the person will also serve as guardian of the estate. But depending on the size and complexity of the inheritance that you plan to leave, it may make sense to name a separate guardian of the estate. For example, you might name a close relative to serve as guardian of the child’s person while designating a professional fiduciary to serve as guardian of the estate.

Published on: April 15, 2016

How Does a Guardianship for Minors Work?

by Scott C. Soady

A guardianship is a type of probate proceeding where a person is appointed to oversee the property and finances of a minor. There are many circumstances that might necessitate such a guardianship. For example, if a minor inherits or receives a large amount of money, a court may appoint a guardian to take custody of those funds. The guardian can then make periodic disbursements of estate funds to pay for the minor’s education, health, or overall maintenance.

Guardianships and Structured Settlements

Here is an example of how guardianships work. This is a recent case from here in San Diego. In 2005, a San Diego resident was killed after a tree fell on his truck during a rainstorm. His family subsequently filed a wrongful death lawsuit against the City of San Diego, which led to settlement agreement. The settlement provided for payments of $1,100 per month to the each of the victim’s two minor children. The children were also slated to receive lump-sum payments on their 16th birthdays and stipends to pay for their college educations. The City financed this structured settlement through the purchase of an annuity from an insurance company.

Published on: March 5, 2016

What is the Best Way to Leave Money to a Child?

by Scott C. Soady

If you plan to leave money or other assets to a minor as part of your estate plan, you need to consider how such a gift will be administered. Minors—that is, anyone under the age of 18—generally cannot manage their own funds. Under California probate law, a court may appoint a guardian for the minor’s estate, which may include a gift left to him or her under someone else’s estate plan. But there are other alternatives to consider.

The California Uniform Transfer to Minors Act

Let us say you want to leave your niece, who is currently six years old, a gift of $10,000 in your will. Assuming you die before she turns 18, your will can specify this gift will be made to her father (your brother) under the California Uniform Transfer to Minors Act (CUTMA). This is a law that basically allows you to make a gift to a minor through an adult “custodian.” So in this scenario, your estate would give the $10,000 gift to your brother, who would serve as custodian of the funds for your niece. The custodian is largely free to invest and manage the money as he sees fit, provided he must turn whatever funds there are to the minor when she reaches the age of 18.

Published on: August 19, 2012

Rapper’s Death Highlights Difficult Planning Decisions — Naming Child Guardians

by Scott C. Soady

Planning one’s long-term affairs usually spurs thoughts about designating who will get what in an inheritance and explaining end of life wishes. But, there is much more to consider. For example,

planning for residents with young children must include difficult decisions about the long-term care of their kids in the event of death or disability.

This issue made national headlines in recent weeks following the untimely death of former musician Adam Yauch. Yauch is best known as one of the founding members of the groundbreaking rap group,

Published on: July 19, 2011

San Diego Union: Estate Planning and Guardianship

by Scott C. Soady

The San Diego Union Tribune, in April of 2011, have an article discussing retirement, estate planning and guardianship. In the article, which deals with financial planning as well as other issues, one of the recommendations is for an estate plan and guardianship of their children. An estate plan can include a revocable living trust which also has many other benefits such as a health care directive and guardianship provisions for any minor children.

A revocable living trust is an estate plan which can be changed or modified as circumstances require. A revocable living trust is one of the only areas in the law where you can make a contract with yourself and it is legally enforceable. Provisions in the revocable living trust can include what happens with your minor children upon your death and many other issues such as property division. The financial security of your family may well depend on your estate plan which can save thousands of dollars in probate fees.
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Published on: July 12, 2011

Guardianship of the Person: San Diego Superior Court Timeline: July 2011

by Scott C. Soady

Guardianship of the person means that the guardian of the minor arranges for the protection and care of the minor. This includes housing, clothing, food, shelter, education and all other needs. The guardian of the person also is in charge of all the personal needs of the minor, their education and their health care and medical needs. Depending on insurance coverage, a guardian may be able to obtain coverage of a minor through their medical insurance.

The San Diego Superior Court’s timeline for guardianship of the person is approximate only and used for reference purposes. The petition is deemed to be filed on Day 1. A temporary guardianship may be requested but only under limited circumstances. On Days 1-5, the investigation is scheduled by either the San Diego Health and Human Services Agency of the San Diego Family Court Services. On Days 1-15, the relatives of the minor must be served with notice. On day 20, check the probate examiner’s notes. On days 20-25, clear any defects which are in the pleadings. On Day 30, attend the hearing. On Days 30-35, file the order and ask for any letters needed.
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Published on: July 7, 2011

Guardianship in San Diego Superior Court: July 2011

by Scott C. Soady

In San Diego, the San Diego Superior Court hears cases invoving guardianship. These cases are heard in the Probate Division. Guardianships can be both of the estate and/or person and gives legal custody of a minor to someone who is not their parent. If a child is in immediate danger, the San Diego Superior Court advises to immediately call 911.

Guardianship can be of the person or of the estate. A guardianship of the person means that you have control and are in charge of the child’s personal needs, health care and education as well as arranging for the child’s protection and care. A guardianship of the estate means that you must file accountings with the Court as scheduled, keep an accurate list of the minor’s estate, protect the minor’s property and income and manage the minor’s finances in a prudent manner. This can happen, for example, when a parent dies and leaves a child their life insurance or other assets and the other parent is deceased.

A guardianship can be either temporary or permanent. A guardianship of the person will require an investigation by either the San Diego Family Court Services or the San Diego Health and Human Services Agency.
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Published on: May 16, 2011

Your Continuing Responsibilities as a Guardian

by Scott C. Soady

During the time you are the appointed guardian of a minor child, you are responsible for providing

for all the personal needs of that minor such as food, shelter, education, and health needs.

Your responsibilities remain in effect until the child reaches the age of 18 or the guardianship is terminated by the Court.

Published on: May 3, 2011

Contested Conservatorships and Guardianships

by Scott C. Soady

Petitioning the probate court to be appointed the conservator of someone’s person or estate may be necessary when an individual has become legally incapable of taking care of himself or unable to handle his finances, and has not created a durable power of attorney for finances. The majority of the time, conservatorships are not contested and granted upon a showing to the court that the proposed conservatee is incapacitated and unable to manage their personal or financial affairs. Sometimes, however, conservatorships are contested.

Family members may disagree as to who should be the conservator. Sometimes the proposed conservatee has a lawyer and wants to contest the granting of the conservatorship. Other times the contest arises simply because of miscommunication among family members who may not understand what it means for an individual to be conserved.

Contested guardianships are similar to conservatorships in the sense that the majority of the time they are not contested. Like conservatorships, family members can fight about who would be the best guardian for minors who have lost their parents or minors whose parents cannot take care of them. If there is no agreement, then a trial may become necessary before a probate judge.

Published on: June 19, 2010

Do I Need to Nominate a Guardian if I am Divorced?

by Scott C. Soady

Whether you are married or divorced, one of the most important decisions you have to make in estate planning is the choice of a guardian for your minor children. Some clients who are divorced ask whether they still need to nominate a guardian if they are divorced. Won’t the other parent automatically get custody?

It is true that absent a compelling reason not to, a judge will grant custody of minor children to their other parent, however there are some situations where your nomination would be helpful to the court. Judges consider a number of factors in determining who should be a guardian such as:

1. The child’s preference 2. Which individual seeking custody will best meet the needs of the child.