Attorney Notes: CEB 2007 Guardianship Outline

Probate guardianship of the estate is the appropriate judicially supervised proceeding for the management of a minor’s estate and minor needs money during minority for support and/or education.

Probate guardianship of the person is the appropriate judicially supervised proceeding for the person if in the four common scenarios below and no alternatives apply or are appropriate and there is a responsible friend or family member who is already caring for the minor and the relative or friend is willing to assume legal responsibility for the minor without adoption and the parents either do not oppose or parental custody would be detrimental.

Verification are for guardians and proposed guardians to sign and not attorney and should be verified in each case

Bond pre screening for guardianship of the estate

Account and Other Documents with Social Security Number are filed with an affidavit entitled
CONFIDENTIAL FINANCIAL STATEMENT

Omnibus Conservatorship and Guardianship Reform Act of 2006

  • 1. Notice for temporary guardianship and conservatorships, unless waived, include 5 days mailed notice to known 2nd degree relatives
  • 2. Bond for guardians or conservators of the estate shall be increased to provide a reasonable amount for the cost of recovery to collect on the bond including attorney fees and costs: $___________
  • 3. Notice for accounting is 30 days and Court can grant a one time 30 day extension
  • 4. Request for special guardianships and conservatorships no longer expire after 3 years
  • 5. Effective July 1, 2007, a copy of the petition for appointment of a guardian must be included with the notice of the hearing when establishing a guardianship
  • 5. Effective July 1, 2007, Court has authority to review all books and accounts and remove immediately a guardian which has serious mistakes
  • 6. Effective July 1, 2007, every guardianship account is subject to random or discretionary review by the Court
  • 7. Effective January 1, 2008, no ex parte communications restated
  • 8.Effective July 1, 2008, all professional fiduciaries must be licensed by the Department of Consumer Affairs
  • 9. New mandatory accounting forms are being prepared by the Judicial Council
  • 10. CalWORKS program has replaced AFDC

Common Scenarios

  • 1. Orphans
  • 2. Preventing abuse or neglect
  • 3. Child has resided in home of and has bonded with non parent adult
  • 4. Technical change of custody

Alternatives to Guardianship

  • 1. Custody proceeding in family law court
  • 2. Dependency proceeding in juvenile court: supremacy over probate and family
  • 3. Delinquency proceedings in juvenile court: supremacy over probate and family
  • 4. Adoption proceedings
  • 5. Emancipation of the minor: must be 14 years of age+; willingly living separately from parents with consent of parents; must be managing own financial affairs; source of minor’s income must be legal and Court must find emancipation not contrary to minor’s best interests
  • 6. Caregiver’s authority to enroll minor in school and authorize medical care: adult caregiver in whose home a minor resides may enroll the minor in school and authorize school related medical case if affidavit completed
  • 7. Minor’s consent to medical treatment and minor’s application to court for consent to marry or to enlist in armed forces
  • 8. Management of minor’s assets by methods that do not involve a court order or guardianship
  • 9. Petition for order directing investment of money belonging to minor
  • 10. Compromise of a minor’s disputed claim and court approval of compromise with money directed other than to a guardianship of the estate
  • 11. Revocable living trust with standard clauses

Trust Accounts for Minors

  • 1. Trustee can be corporate, private professional fiduciary or parent, family member or friend.
  • 2. Income other than artistic, creative or athletic
  • 3. Under $5,000, can distribute directly to parent
  • 4. California Uniform Transfers to Minor’s Act: gifts to minors through a custodian without the need for a guardianship
  • 5. Bank accounts in name of minor and/or others
  • 6. Order directing investment of money belonging to minor
  • 7. Compromise of disputed claim: CPA involvement regarding structured settlements
  • 8. Special Needs Trust: consider welfare reimbursement issues
  • 9. Attorney fees paid after court order as well as medical expenses and costs

Service

  • 1. Personal service according to Code for initial pleadings for appointment of guardian, petition to authorize medical treatment and rights in real property to the minor’s parents, 12+ minor, or to other having legal custody.
    • NOTE: Check specific parties to be noticed in each individual case as this differs depending on the relief requested
    • NOTE: Substitute can be certified mail with signed acknowledgment used only if party agrees
    • NOTE: Consider waiver of notice if applicable
  • 2. Mail service to spouse, and all second degree relatives sister, brother, children, MGM, MGF, PGM and PGF
  • 3. Most hearings are 15 days whether served by mail or personally and there is no distinction with the following exceptions
    • A. Determination of ownership of property: 30 days
    • B. Petition to transfer personal property to another jurisdiction outside of CA: 30 days
    • C. Appoint temporary guardian: 5 days
  • 4. Mail service according to Code once responsive pleadings filed
  • 5. Service per local rules for subsequent pleadings
  • 6. Service by Court order
  • 7. Special Notice: State hospitals; Veterans Administration; Director of Regional Center for the Developmentally Disabled
  • 8. Publication and/or Court posting: sale of real or personal property
  • 9. Proof of Service: use in CD forms specifically for probate court
  • 10. Notice of Acknowledgment and Receipt: file with Court
  • 11. Order Shortening Time: can be granted in any matter other than appoint a guardian and is served with the initial pleadings
  • Forms
  • 1. Use judicial council forms only
  • 2. Be specific with all names and other information and repeat as necessary
    • NOTE: do not list specific reasons why parent unfit or placement detrimental and only allegation
  • 3. Use one attachment for many different paragraphs in different forms
    • NOTE: check court website for any defects as possible prior to hearing
  • 4. Insert minor’s dob
  • 5. Make sure all relief (orders) requested are filed concurrently
  • 6. List all assets with extreme specificity when appointment of estate and bond forms
  • 7. Sample list of routinely used forms
    • A. GC 020 (P): proof of service
    • B. GC 020 (PA): proof of service
    • C. GC 210 (P): petition for appointment
    • D. GC 120: UCCJEA
    • E. GC 212: confidential guardianship screening form
    • F. GC 210 (A): child information
    • G. GC 020: notice of hearing
    • H. GC 211: use if consent only
    • I. GC 205: probate guardianship pamphlet
    • J. GC 248: duties of guardian
  • Court Hearings
  • 1. San Diego and Vista Courts
  • 2. Petitioner/Guardian and minor need to be personally present
  • 3. 730 evaluation if necessary and requesting party to advance fees and costs
  • 4. FCS mediation if necessary
  • 5. Oral testimony can be taken of expert, parents or child
  • 6. Legal Standard for guardianship: necessary or convenient
  • 7. Uncontested Guardianship
  • 8. Contested Guardianship
    • A. In writing objections on Form 5.66
    • B. Must be verified
    • C. Complete petition for alternate appointment
    • D. Propound written interrogatories and production of documents
    • E. Deposition
    • F. Subpoena
    • G. No jury trial
    • H. No motions for new trial
    • I. Proof of service of pleadings
  • 9. Legal Standard for placement with non parent over objection of parent
    • A. Clear and convincing evidence and detriment if award to parent
    • B. First preference to current placement if safe and stable
    • C. Showing of detriment must be by the legal standard of preponderance of the evidence

Guardians Duties and Limitations
1. Give client letter on Form 5.90
2. No ATM cards
3. No gifts
4. No fees
5. Accurate accounting records

  • Temporary Guardianship
  • 1. Good cause under PC 2250(b)
    • A. Minor needs immediate medical treatment due to injury or illness
    • B. Minor needs to be enrolled in school
    • C. Both parents are dead, absent, incarcerated or incapacitated for (A) and (B)
      • NOTE: Relative caregiver’s affidavit is not an option (FLC 6550)
    • D. Minor needs immediate protection from child endangerment
    • E. Minor’s custodial parent is also a minor who is in custody
    • F. Minor visiting in CA reports abuse and return to home state would be detrimental
  • 2. Forms
    • A. GC-110: petition for appointment for temporary guardianship
    • B. GC 110(P): for temporary guardianship of the person only
    • C. GC 212: confidential screening form
      • NOTE: only filed with court and not served
    • D. GC-211: consent and nomination
    • E. GC-248: duties of guardian
    • F. GC 140: order appointing temporary guardian
    • G. GC-150: letters
  • 3. Ex Parte
    • A. Obtain local rules
    • B. Obtain information regarding local practice
      • 1. San Diego
      • 2. Vista
  • 4. Accountings (temporary guardianship of the estate)
    • A. Within 90 days
    • B. Obtain account statements as of date of appointment
    • C. Present letters to all financial institutions
  • 5. Letters
    • A. Have client sign multiple letters since extension beyond 30 day period may be needed
      • 1. Obtain information regarding local practice
  • 6. Termination
    • A. Temporary guardianship expires in 30 days or upon appointment as guardian or dismissal
    • B. Death
    • C. Age of majority= 18
    • D. Court finding
    • E. Adoption & Emancipation
      • 1. Only of person
  • Court Investigations and Reports
  • 1. Mandatory
  • 2. CPS
    • A. Abuse
    • B. Neglect
    • C. Estate
  • 3. FCS
    • A. Person
  • 4. Court Investigator
    • A. Estate only
  • 5. Provide complete packet per local practice {see if Clerk has sample}
  • 6. California Court Investigators Office
    • A. 6950 Levant Street San Diego, CA 92111
    • B. 619-616-5886
  • 7. Investigative Agencies when proposed guardian is not a relative
    • A. Health and Human Services Agency: guardianship unit
    • B. 8965 Balboa Avenue San Diego, CA 92128
    • C. 858-616-5907
  • 8. Parent Unfitness finding
    • A. Refer to juvenile court: dependency
  • Bonds
  • 1. Estate
    • A. Always necessary unless
      • 1. Corporation or association authorized as trust company in CA
      • 2. Small estates
        • A. Less than $7,500 exclusive of the residence of the minor
    • B. Monthly income, exclusive of public benefit payments, does not exceed $1,000
    • C. All income of the estate is being used for the benefit of the minor
      • 3. Custodial parent if nominator has waived bond
  • 2. Person
    • A. Factual basis
  • 3. Joint guardians
    • A. Court may order separate or joint bonds
  • 4. Amount
    • A. Sum of
      • 1. Value of personal property of the estate
      • 2. Probable gross income of all estate property
      • 3. Probable annual gross payments from specified county, state and federal public welfare programs
      • 4. Starting 1-1-08 include reasonable amount for the cost of recovery to collect on the bond
      • including attorney fees and costs
  • 5. Individual Sureties
    • A. Twice the amount of an admitted surety insurer
  • 6. Deposit in lieu of surety
  • 7. Reduction in bonds when funds in blocked accounts or deposited
  • 8. Increase in bonds when change of assets and attorney for guardian must make motion
    • A. Real property sold
    • B. Money borrowed
    • C. Increase in value of existing estate asset
    • D. Inheritance
    • E. ATTORNEY HAS LIABILITY FOR MONITORING AND REPORTING

Inventory and Appraisal

GC-040: inventory form

  • 1. Take control of person and estate
    • A. Of person
      • 1. Establish residence
        • A. In CA: without court approval
        • B. Outside CA: with court approval
        • C. Best interests and least restrictive
        • D. Notice
        • E. Change of residence form to be filed with court.
      • 2. Minor’s use of personal property
      • 3. Vehicles
        • A. Guardian of person; liable for any injuries
        • B. Guardian of estate: liable for insurance and limits
        • C. Transfer title of vehicle to guardian
    • B. Of estate
      • 1. Inventory
        • A. Current checking and savings accounts
        • B. Insurance policies
        • C. Income tax returns
        • D. IRS forms for dividend and interest
        • E. Deeds and title policies
        • F. Loan statements
        • G. Personal property
        • H. Vehicles
        • I. Safety deposit boxes
          • 1. Have independent witness when opening
  • 2. Citation can be used if obstruction to obtaining information
  • 3. Appraisal
    • A. Personal property
    • B. Real property
    • C. Professional appraisers
      • 1. Jewelry
      • 2. Real estate
      • 3. Business interests
    • D. Date of valuation
      • 1. Date of appointment of guardian
      • 2. After acquired property as of date of acquisition
      • 4. Check bond requirements after inventory
      • 5. Must be completed within 90 days of the appointment

Duties and Powers of Guardian

  • 1. Fiduciary
  • 2. Annual status report
    • A. GC-251: confidential guardianship status report
    • B. 30 days prior to annual status
  • 3. Joint guardians
    • A. Conflict of interests
  • 4. Joint guardians
    • A. Person
    • B. Estate
  • 5. Guardian of person powers
    • A. Without court approval
      • 1. Residence in CA
      • 2. Consent to medical treatment
      • 3. Non emergency surgery if minor is 14 or over with minor consent
      • 4. Emergency surgery
    • B. With court approval
      • 1. Establish residence outside of CA
      • 2. Non emergency surgery if minor is 14 or over without minor consent
    • C. Prohibited
      • 1. Placement of minor in a mental health treatment facility without minor consent
      • 2. Sterilization of minor
      • 3. Convulsive treatment
      • 4. Administering or prescribing an experimental drug
    • D. No duty to financially support minor
    • E. Non resident minor
      • 1. Limited purpose
  • 6. Guardian of estate powers: print out Section 10.28
    • A. Control and preserve estate property
    • B. Segregate estate property from guardian’s personal assets
    • C. Avoid using or dealing with estate property for personal reasons or profit
    • D. Duty of ordinary care and diligence
    • E. May not use guardian assets without court order
    • F. Independent powers without court approval upon petition [need new letters issued]
      • 1. Contract and perform outstanding contracts
      • 2. Operate any business
      • 3. Give or take options
      • 4. Buy or sell real or personal property
      • 5. Exchange property
      • 6. Create easements and servitude and make structural changes
      • 7. Borrow or lend money
      • 8. Alter, improve, repair or raze property
      • 9. Lease
      • 10. Begin and maintain partition action
      • 11. Exercise stock options and rights
      • 12. Pay, collect, compromise or arbitrate claims
      • 13. Employ attorneys, accountants, and others
    • G. Allowance to minor for direct payment for expenses
    • H. Obligation to pay necessities of life
      • NOTE: if parents alive, parents should support first prior to depleting estate
  • 7. Conflict of interest issues
    • A. Sales or rentals to third party with family relationship to guardian
    • B. Hiring or referring to an entity in which guardian has a financial interest
    • C. Probate court personnel prohibited from participating in transactions
    • D. Strategies to avoid conflicts
      • 1. Segregate estate assets from fiduciary’s personal assets
      • 2. Not make loans to self or family members from estate assets
      • 3. Not use estate assets as collateral
      • 4. Not make gifts
      • 5. Pay rent if living in house owned by estate
      • 6. Not hire family members as either personal care providers or agents/brokers
      • 7. Not use businesses in which guardian has a financial interest to provide services to the estate
      • 8. Private professional guardians
        • A. License under B&P
        • B. Register with statewide registry
        • C. Not related to minor

Estate Management

  • 1. Debts
    • A. Before establishment of guardianship
      • 1. Priority of claims
      • 2. Specific rules regarding amounts and method of payment
    • B. During guardianship
      • 1. Necessaries of life
        • NOTE: if parents alive, must look to them for payment first
      • 2. Torts
      • 3. Administration expenses
      • 4. Advances by guardian and reimbursement
      • 5. No direct creditor enforcement against estate
        • A. File lawsuit
        • B. Submit to probate court
        • C. Submit to arbitration
    • C. Priority of payments and debts
      • 1. Income
      • 2. Principal
      • 3. Assets
    • D. Third party control
      • 1. PC Section 850 petition
      • 2. Investments and deposits
        • A. Standard of care
          • 1. Prudent person
            • A. Age
            • B. Life expectancy
            • C. Educational needs
            • D. Size of the estate
            • E. Income requirements
            • F. Lifetime tax considerations
        • B. Requires court authorization prior to investment
          • 1. Uniform prudent investor act
          • 2. Professional investor with license and experience
          • 3. Block security account for no distributions
      • 3. Sales: may need to increase bond if cash increases or value of estate
        • A. Requires court authorization if personal property over $5,000 in one aggregate year
        • B. Requires court authorization if real property
          • 1. Use Realtor probate forms for contract
          • 2. Deposit on purchase to be held in blocked account outside escrow in case of default
          • 3. File order with country recorder in county in which property is located
          • 4. Foreclosure in lieu of deed
          • 5. 1031 exchange
        • C. Consider liquidated damages clause in contract
      • 4. Purchases
        • A. Real property only for benefit of minor with court approval
        • B. Personal property for necessaries of life
        • C. All others by court approval
          • 1. Stocks
          • 2. Bonds
          • 3. Contracts
      • 5. Borrowing
        • A. Court approval
        • B. Only used for purchase of residence for minor
      • 6. Insurance
        • A. Health
        • B. Auto
        • C. Residence

Accounting

  • 1. One year after date of appointment
  • 2. At least every 2 years after the first accounting
    • A. Large estate should be once every year
    • B. Decreasing estate
    • C. Unusual events or expenditures
    • D. Legal action is pending
    • E. Regular use of unusual powers
    • F. Doubt about guardian’s accounting
    • G. Attorney performs extra services
  • 3. As ordered by the court
  • 4. Final accounting
    • A. Death of minor
    • B. Termination by court
    • C. Resignation or removal
    • D. 90 days for temporary guardian
    • E. Death or incapacity of guardian
  • 5. No accounting required
    • A. Small estates if all below met
      • 1. Total net value of all property [excluding residence] is less than $7,500
      • 2. Income of the estate [excluding public benefits] is less than $1,000 per month
      • 3. All income of estate spent for benefit of minor
    • B. Minor has reached age of majority and waives final accounting
  • 6. Failure to file accounting
    • A. Removal and/or suspension
    • B. Punishment for contempt
    • C. Appointment of temporary guardian
    • D. Appointment of legal counsel
    • E. Other appropriate action
  • 7. Allowable expenses
    • A. Costs of minor’s maintenance and support
      • 1. Parent’s obligation if parent alive
    • B. Miscellaneous expenses of administration
      • 1. Traveling expenses
      • 2. Storage charges
      • 3. Filing fees and court fees and expert fees
      • 4. Surety bond premium
    • C. Payment of guardianship debts
    • D. Fees for the guardian and the attorney
      • 1. Prepare extremely detailed billing
  • 8. Form of accounting
    • A. Use standard accounting prior to 12-31-07 {form 14.27}
    • B. Use judicial council form [mandatory] after 1-1-08
    • C. Attach original statement for all accounts
  • 9. Objections to accounting
    • A. Surcharge guardian
    • B. Fees for guardians who successfully defend

Compensation

  • 1. Persons compensated
    • A. Guardian of the person
    • B. Guardian of the estate
    • C. Attorney for the minor
    • D. Attorney who is acting as guardian
    • E. Attorneys appointed to investigate and report to court when guardian has failed to account
  • 2. Basis for attorney fees
    • A. Just
    • B. Reasonable
    • C. Detailed statement of facts
      • 1. Nature and difficulty of tasks performed
      • 2. Results achieved
      • 3. Benefits of the services to estate
      • 4. Amount requested of each category of services provided
      • 5. Use same billing procedure as for hourly billing cases
  • 3. Basis for paralegal fees
    • A. Qualifications
    • B. Hours spent
    • C. Billing rate
    • D. Justification for use of paralegal
    • E. Explanation for total amount of hours of both attorney and paralegal
  • 4. Court authorization required if payable from estate
  • 5. Consult local rules
  • 6. Death of minor
    • A. Claim in probate
  • 7. Firm fees
    • A. Hourly rate
    • B. Flat fee

Guardianship Termination

  • 1. Age of majority
  • 2. Death of minor
  • 3. Court has determined termination in best interests of minor
  • 4. Person
    • A. Marriage
    • B. Adoption
    • C. Emancipation
    • D. Active duty in military
  • 5. Estate
    • A. Final accounting
    • B. Exhausting estate
    • C. Transfer of assets or case to foreign jurisdiction
  • 6. Probate court retains jurisdiction
  • 7. Removal of guardian
    • A. Failure to use ordinary care and diligence in managing estate
    • B. Failure to file an inventory ro render an account within legal time periods
    • C. Continued failure to perform duties
    • D. Incapacity
    • E. Felony conviction
    • F. Gross immorality
    • G. Interest adverse to performance that an unreasonable risk is presented
    • H. Violation of any laws relating to their duties
    • I. Bankruptcy
    • J. Best interests
  • 8. Resignation of guardian
    • A. Court will decide
    • B. Must petition for successor guardian
  • 9. Visitation orders
    • A. Petition at end of guardianship
  • 10. Accounting
    • A. Continuing duty
    • B. Final accounting
    • C. Objecting to final accounting

Appeals

  • 1. No appealable in general
  • 2. Appeal
    • A. Granting letters
    • B. Instructing the guardian
    • C. Fixing the residence of the minor outside CA
    • D. Claims by or for the estate
    • E. Payments from the estate for the benefit of the minor
    • F. Fiduciary or attorney fees and expenses
    • G. Settling an account
  • 3. 180 days from entry of judgment if not served
  • 4. 60 days if served

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