What is a Guardianship?

Guardianship and Advance Health Care Directives

What is a guardianship? Many people used to think that estate planning was only for extremely wealthy individuals. This is a common misconception, but in recent years, more and more people are realizing that a comprehensive estate plan can provide many benefits. Regardless of wealth or family structure. While minimizing taxes is nice, it is only one aspect of estate planning.  Usually, when something is difficult to talk about, it tends to be very important, particularly when it pertains to our health and our children.  At some point we must think about who is going to take care of us. Who is going to help us with our health care decisions if we are unable to do so ourselves.  And if we have minor children, who will take care of them?

Advance Health Care Directive

Despite the rising level of knowledge and understanding of basic estate planning, a 2017 study found that two-thirds of Americans do not have an Advance Health Care Directive.  The laws governing Advance Health Care Directives in California are set forth in the Probate Code.  An Advance Health Care Directive, also known as a health care power of attorney, enables a person, as principal, to designate an agent(s), as attorney-in fact, to make certain health care decisions on their behalf.  The Advance Health Care Directive will identify when the document becomes effective. For example, either immediately or upon incapacity (which can be defined however the person chooses, e.g., by a spouse, a primary care physician, by two or more physicians, by a disability panel, etc.). 

Additionally, you can provide further guidance as to how incapacity is determined by being specific.  For example, the Advance Health Care Directive can state that the principal is considered to have the capacity to make their own medical decisions and give informed consent to a proposed medical treatment if they are able to:  (a) respond knowingly and intelligently to queries about that medical treatment, (b) participate in that treatment decision by means of a rational thought process, (c) understand the seriousness of the illness, disorder, or defect, etc.

Mental Capacity

After it has been established that the principal lacks the mental capacity to make their own health care decisions, the agent will make health care decisions on behalf of the principal.  These decisions may include, but are not limited to:

• Consenting or refusing consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition
• Selecting or discharging health care providers and institutions
• Approving or disapproving diagnostic tests, surgical procedures, and programs of medication
• Directing the provisions, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care, including CPR
• Donating organs, tissues, parts, authorizing an autopsy, and directing the disposition of remains

Just because you name a few people as your agent does not mean that they will want to make your medical decisions for you.  These decisions can be very stressful and can impact whether you live or die.  Not surprisingly, some people do not feel comfortable with this kind of responsibility. This is why it is extremely important that before you nominate someone as your heath care agent, you first speak with them and ask them if they are comfortable with acting in such capacity.  The last thing you want is having an Advance Health Care Directive full of names of people that do not want to act.

After my clients have executed their Advance Health Care Directives, I recommend they provide a copy to their named agents and to their primary care physician if they have one.  For my clients who live alone, I also recommend they put a copy of their Advance Health Care Directive in a clearly marked manilla envelope and attach it to the front of their refrigerator as many EMTs are trained to look there. 

Guardianship

If you do not have an estate plan, you probably have not made a formal decision as to who will take care of your minor children upon your disability or death.  These decisions should be in writing and clearly set forth your wishes; they are usually located in the power of attorney (upon your disability) and in the will (upon your death).   If there are no documents that formally set forth your wishes upon your incapacity or death, then the court will determine who will raise your minor children through a guardianship proceeding.  To be clear, even if you nominate guardians in your estate planning documents, a guardianship proceeding will be required, however, the court will appoint your selected individuals as the guardians of your minor children.  On the other hand, if you have not nominated any guardians, then the court will select the guardian(s).  A probate guardianship is where the court appoints an adult who is not the child’s parent to take care of the child or the child’s property.  There are two kinds of probate guardianships, a guardianship of the person, and a guardianship of the estate. 

Now what happens if you become incapacitated and have minor children, or after your death?  Well, if you do not have the proper estate planning documents, the probate court will likely determine who will raise your minor children. This is called a guardianship proceeding.  A probate guardianship is when the court appoints an adult who is not the child’s parent to take care of the child or the child’s property.  There are two kinds of probate guardianships. A guardianship of the person, and a guardianship of the estate. 

A guardianship of the person is created because a child is living with an adult who is not a parent, and the adult needs the legal authority to make decisions on behalf of the child.  In a probate guardianship of the person, the guardian has full legal and physical custody of the child and is responsible for the child’s care, including the child’s:

• Food, clothing, and shelter
• Safety and protection
• Physical and emotional growth
• Medical and dental care
• Education and any special needs

A guardian of the estate manages a child’s income, money, or other property until the child turns 18.  A child may need a guardian of the estate if the child inherits money or assets.  In some circumstances, the guardian of the person may not be the same person as the guardian of the estate.  For example, a guardian of the person may be a family member. Whereas the guardian of the estate may be a private professional fiduciary or a corporate trustee such as a bank.

Conclusion

Imagine the heartache, stress, and worry of a minor child, and then add a lengthy court proceeding to it. A court proceeding that may involve family members fighting over who will get custody of the child. 

Some of this stress can be easily avoided by proper planning.  If you have minor children, you can nominate individuals in your will who will serve as the guardian. This includes the person and estate of your minor children upon your death.  You can also nominate individuals in your power of attorney for asset management who will serve as the guardian of the person and estate of your minor children upon your incapacity.  You, not the court, should determine who raises your minor children.  Avoid costly guardianship proceedings and family fighting. How? Contacting an estate planning attorney who can guide you through the process. Including creating a comprehensive estate plan for what matters most, peace of mind.

Mr. Malloy is a Senior Attorney at RJS LAW with over 15 years of experience in trusts and estates, business law, and real estate.

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Published by Brian M. Malloy

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Estate Planning

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San Diego

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