When parents of a child are no longer able to care for the child, a guardianship is needed. Unfortunately, so many people are unprepared and do not designate a guardian for their child, so the court must. At JCloud Law, P.C., our estate planning attorney wants you to understand how setting up a guardianship via your estate plan is critical if you have minor children or an adult child with a disability.
Contact us by filling out the online form or contacting us directly at 480-378-3543 / 858-299-0440 to schedule a free 15-minute consultation. We want what's best for you and your family, and preparing for the future through a guardianship is critical to that end.
What Constitutes a Guardianship (AZ) / Conservatorship of the Person (CA)
Guardianship is legal authority provided to a specific person to make decisions for another person. Typically, guardianships are necessary when a child's parents are unable to care for the child, and the child is a:
- Minor; or
- An Adult Living with a disability.
In Arizona, the person with legal authority over the child is referred to as the “guardian.” The subject (child) of the guardianship is referred to as the “protected person” or “ward.” In California, this is called a conservator of the person.
Endowed with legal authority, the guardian is responsible for the well-being and care of the child and can make decisions about the child's:
- Healthcare
- Residency
- Education
- Religion
Guardianship may also be needed over the child's estate when the child has inherited assets. The guardian will manage these assets until the child is an adult.
Reasons a Guardianship Might be Needed
Parents almost always have the legal right to make decisions for their children unless parental rights have been terminated. When parents cannot make those decisions, someone must step in to do it. This often happens when both parents have died or when both parents are incapacitated in some way by illness or injury. It can also be a situation where one parent has died or has no parental rights while the other parent is incapacitated.
Who Can Be Appointed as a Guardian
Who the guardian is often depends on whether or not a guardian was designated in a Will. If the latter was not created, the court will appoint a guardian.
A Will May Control Who Can Become a Legal Guardian
By naming a legal guardian in a will, a parent can ensure that their child is raised in a way they would approve. While this is obviously far less desirable than raising the child on their own, parents can keep the decision from being made by someone like a judge, who does not have a full understanding of their family.
Factors to Consider a Person as a Guardian
Choosing who to be a child's legal guardian is not easy. Parents often consider the following factors:
- Their personal relationship with the guardian
- How trustworthy and reliable the guardian is
- The age of the guardian
- Cultural or religious traits that the parent shares with the guardian
- Geographical proximity
- Whether the guardian already has children
- Input from the Ward
Factors that Disqualify a Person as a Guardian
Not all people can be guardians. Examples of when a person does not qualify as a guardian include but are not limited to people who:
- Are incompetent (e.g., cannot care for themselves properly)
- Are also a minor
- Have filed for bankruptcy in the past (e.g., within 7 years)
- Have been convicted of a felony (unless the court states otherwise)
- Have committed violent crimes or offenses involving some type of abuse against a child, spouse, parent, or another adult
- Have been suspended or disbarred from a profession that requires a state license and involves the management of money
Naming a guardian in a last will and testament, however, can have a complication for parents who each have their own will. If both parents pass away – especially if they pass away at the same time – and their respective wills each name someone differently, it can create confusion and may require court intervention.
Courts Appoint a Guardian in the Absence of a Will
In cases where the child's parent has become incapacitated or has died and there is no will stating who will become the child's legal guardian, a court will appoint one. It will usually choose a close relative, although other people, like family friends, can ask the court to appoint them, instead.
If there are no close relatives or family friends, the child will become a ward of the state and enter the foster system. Most parents would not want this situation placed upon their child, and in part, that alone is a critical reason to prepare a will designating a guardian.
How Long Does a Guardianship Last?
Guardianship usually lasts until death or the Court terminates it.
A guardianship may also be terminated under other circumstances, like when/if:
- The guardian or child dies
- The guardian becomes incompetent
- In some circumstances, a ward could regain competence
- A parent who had been incapacitated no longer is
- The guardian requests termination and the court approves
In cases where the protected child is not yet an adult, the court will appoint another guardian unless the will indicates an alternative guardian.
Contact a Guardianship Attorney in Arizona & California Today
If you have minor children, or an adult incapacitated child, you want to make sure they are protected. A guardianship is one way to secure their livelihood and futures in a way that aligns with your family's values and customs. Our estate planning lawyer will help you identify what components will work best in your estate plan, whether it includes guardianship as well as other tools, like a testamentary trust. Contact us today either online or at 480-378-3543 / 858-299-0440 to schedule a free 15-minute consultation and learn more.