Guardianships & Simple Wills

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Guardianship

When a child’s parents are unable to provide appropriate care for the child (for example, due to prolonged illness or extended absence in jail or the military or substance abuse), there generally are two options: the state can find a new home for the child (foster care), or a friend or family member can take on the responsibilities of caring for the child (guardianship).  The Wald Law Group gladly provides services to people offering to take responsibility for children through guardianship, rather than risking those children ending up in the foster care system.

Guardianship differs from adoption because in adoptions, the parental rights of the birth parents generally are terminated; whereas in a guardianship, the parents remain the parents but someone else (the guardian) takes over custody of the child.  This is the ideal option where it is beneficial to maintain the legal relationship between parent and child, but the parent is not able to provide the daily care the child needs.

The process for a guardianship is complicated and requires many forms and declarations, proper service on family members, and at least one court appearance.  The Wald Law Group drafts and files the necessary forms and supporting documents, ensures proper service is completed, and represents the client(s) at the guardianship hearing to assure that everything is handled professionally and with the least possible strain on the proposed guardians.

Nomination of Guardian

A Nomination of Guardian differs from a guardianship in that it does not actually grant the guardian custody of the child; it simply directs the courts as to whom the parents want to assume guardianship should the parents be unable to provide their child with the necessary care.  We strongly recommend that all parents of minor children have Nomination of Guardian forms for their children, to assure that the parents’ wishes are honored in the event of an emergency.  The appropriate guardian often will change as circumstances change (e.g. as the child becomes older, as people move, etc.), so these forms should be updated regularly to assure that they reflect the parents’ current wishes.

Simple Wills

A simple Will is a legal document that states your wishes for your property and minor children once you pass away.  Anyone who is at least 18 years old can create their own Will in California as long as they follow certain rules established by the courts.

There are some important differences between a Will and a Nomination of Guardian.  First, a Will only goes into effect once you die.  If you are in the hospital and/or in a situation where you are 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 are more than happy to discuss options with you, and provide advice based on the specific details of your situation.