FAQs

What is a guardianship?

A guardianship is a way to grant someone else legal custody of your children without termination of your parental rights; or to obtain legal custody of a child in your care (other than your own child) for whom you need the authority to make medical and educational decisions.

How might a guardianship help me and my family during the COVID-19 crisis?

Creating stability for children is always important, but even more so in these times of crisis.  During the current shelter-in-place mandates, it is important to make sure that children have a place to shelter, to reduce or eliminate the chance of children having to move from one place to another, and to assure that there is a responsible adult authorized to make appropriate medical decisions.  Parents need to know who will care for their children should the parents become incapacitated or otherwise unavailable.  Guardianships can assist with all these goals.

How does COVID-19 affect my need for a guardianship?

COVID-19 has created a more immediate need for guardianships for many families.  The ability to make fast and effective medical and educational decisions affecting the well-being of children is even more pressing during times of uncertainty.   It also is important to give children a sense of stability and comfort while other aspects of their environments and routines are changing.  However, the COVID-19 crisis is impacting access to the courts, so if you think you may need a guardianship, you’re advised to act quickly due to anticipated delays.

If I currently am able to care for my children, but am worried about who will take care of them should I become seriously ill or die, what should I do?

If you don’t currently need a guardian for your children but are afraid of what will happen to them if you are incapacitated, you should execute a document called a Nomination of Guardian.  This lets the courts know to whom you want your children entrusted if you are unable to care for them, thereby avoiding the chance of them ending up in foster care.

What is the difference between a Nomination of Guardian and a Simple Will?

There are a few important differences between a Nomination of Guardian and a Will.  First, a Will only goes into effect if you die; if you are in the hospital and incapable of caring for your children, but are alive, your Will is not operative.  Second, a Will does more than assign responsibility for the care of your children; it also addresses disposition of your assets (both money and property) and tells people what you want done with your remains.  Often, the best advice is for people to have both a Will and a Nomination of Guardian, so they are covered regardless of what happens. We will be glad to discuss your options with you further, so that we can provide advice based on the specific details of your situation.

If I currently am caring for a child that isn’t my own, what should I do to make sure I can make all necessary legal decisions for that child?

If you have a child in your care that isn’t your child, and you need to be able to make legal decisions for that child (e.g. about medical care and education), you should petition for legal guardianship.  This can be done either with or without the consent of the parent(s).  Please don’t hesitate to contact The Wald Law Group for a consultation so we can help you figure out what course of action is best for you.

How are the courts currently treating temporary and permanent guardianships?

With the current COVID-19 court shut-downs, each county is handling cases in their own way.  Currently, we are submitting temporary guardianship requests as ex parte (emergency) motions, with the hope that the court will review the petition, recognize the need for immediate decision-making abilities, and grant the temporary guardianship on the submitted documents alone without the need for a hearing.  At this time, we expect that permanent guardianships will be handled as usual because permanent guardianships require an investigation by a court investigator or CPS, so hearing dates generally are around 3 months after filing occurs (by which time we all hope this crisis will have abated).  However, our expectation is that “home visits” for permanent guardianships likely will be handled telephonically or via video conferencing.  This is subject to change as the courts navigate the current crisis and determine the best way to approach these types of matters.

We are maintaining county-by-county memos on the handling of guardianship cases, and will be glad to provide more detailed, customized information as appropriate.

© March 2020 Deborah H. Wald & Francesca C. Ungaro

DISCLAIMER: This article is intended to provide general information about selected legal topics. The information provided is not legal advice, and is published for informational purposes only. It is not intended to be used as a substitute for specific legal advice or opinions, and the transmission of this information is not intended to create an attorney-client relationship between the sender and the receiver. No reader should act on information contained in this article without obtaining the specific advice of legal counsel. The attorneys at The Wald Law Group, P.C. are licensed to practice law in the State of California, and do not offer advice as to the laws of any other state.