Parents with minor children often ask me about appointing a guardian for their minor children if anything were to happen to them. I've discovered there is a grave misunderstanding of how guardianship nominations work. This post intends to clear that up.
Essentially, a guardianship nomination is just another piece of paper in your estate plan - sometimes incorporated into a will, sometimes a separate writing. What many don't understand is that the nomination itself is NOT a guardianship appointment. To the surprise of many, the Court must get involved when appointing a guardian.
There are two types of guardianships in California - Person and Estate. A guardianship of the person covers the health, education, and physical custody and well-being of a minor child, while guardianship of the estate is about safeguarding a minor's financial assets.
Guardianships come in many shapes and sizes. Some are required due to horrible circumstances such as parents death, others due to unfit parents, while some due to a minor receiving an inheritance. California Probate Code section 1500 begins the section on guardianship appointments.
If and when a guardianship is required, a relative of the minor must file a petition with the probate court, asking the court to appoint a guardian of the person and/or estate for the minor. The nomination of guardian is presented to the court as the preferred person to act as guardian. The harsh reality of the process is that the court may not agree that the nominated individual is best for minor's care and protection. This could for a few reasons: 1. The nominated guardian has a criminal history that would affect their ability to act ( the court will check); 2. The nominated guardian does not ultimately consent to the appointment; 3. Another person objects to the appointment of the nominated guardian.
Absent the above, a guardianship nomination should hold considerable weight for the judge, since it shows clear intent of what the minor's parents wanted for their child.
The takeaway here should be that court involvement is required when appointing a guardian and the nomination itself does not give any individual authority over the minor.