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Guardianship Agreements

Guardianship agreements are documents that let doctors, teachers, family members, and courts know who you want to look after your children if you are incapacitated or pass. There are four types of guardianship agreements.

(1) Caregiver Affidavit

This type of agreement any family member can fill out who is taking care of a child even though they are not the legal guardian. These forms are usually used if the parents are incapacitated or unable to care for the child for some period of time. This form allows the guardian to enroll the child in school and make health care decisions under some circumstances.

(2) Guardianship Clause in a Will

This is the most common agreement and allows you to nominate a guardian in the event you pass.

(3) Nomination of Guardian

I use a nomination of guardian form as an attachment to your will and trust. This way it is both easier to work with in a short-term emergency and allows the parents to keep their decisions private (if you would like to keep your decisions private, you can throw away the form once your kids are over the age of 18 without having to update your will and/or trust).

The other benefit of this form is that it works as a Guardianship Authorization as well as as a nomination. This means if you need your child's guardian to manage the care of the kids in an unexpected emergency, they have a signed and prepared authorization (I will keep a copy in my office if they cannot find yours).

(4) Joint Guardianship

Joint guardianship is a legal tool for terminally ill patients. This tool allows a parent to transfer parental rights to another person while they are still alive and to keep their rights until they pass. Upon death, full guardianship rights transfer automatically, which is can ease the emotional turmoil on children. If you would like help setting up a joint guardianship, please give us a call or email us.

What information do I need for a Guardianship Agreement?

In order to put a guardianship agreement in place, you will need to make the following decisions:

(1) Guardian of the Person

A “guardian of the person” takes care of a child’s well-being, including education, religious upbringing, medical care, and day-to-day decisions.

(2) Alternate Guardian of the Person

In the event your first choice is unwilling or unable to serve, an alternate guardian can take their place.

(3) Guardian of the Estate

If you are leaving your child property or assets you will also need to decide who is going to be the guardian of the estate. A guardian of the estate manages the child’s property and assets. You may name one person to have both sets of responsibilities or name separate people. You can name any adult as the Guardian of the Estate of your child. By law, a bond is not required, but an estate guardian is entitled to reasonable compensation from the gift property. Often, when a custodian is a close friend or relative, they chose not to be paid.

It is normally a good idea to select to the same person to be the guardian of the estate and guardian of the person. If the person you have selected to be the child’s guardian is not competent to handle finances, you should consider naming someone else whom you trust to manage the finances.

(4) Alternate Guardian of the Estate

In the event your first choice is unwilling or unable to serve, an alternate guardian can take their place.

(5) Age Guardianship Ends

If you are leaving assets for your child or children, you should also decide when you would like any remaining assets to be given to the child. You can choose any age between 18-35. If you do not choose an age, the court will assume your child should receive the assets at the age of 18. Many couples elect an age between 25 and 30.

My general recommendation to parents in encouraging a slightly older age, is that if a child is inheriting it means they have recently lost one or both of their parents. Even responsible young adults might not want to look at the money because it reminds them of a tragic time. By having another party keep the property and/or financial assets in a separate account, it gives the children time to grieve. The children's financial trustee will still be able to give money to the kids for school, education, weddings, and other activities that you as the parent would have supported financially. Many parents will also choose to give an initial gift of 10-25% of the estate so the kids have some initial gift which I believe is appropriate and kind in many circumstances as children may want time off work or school in order to adjust to the new situation.

Call me, your Oakland estate planning lawyer, today for a free initial consultation!

summerall law
Summerall Law, P.C. - Oakland Estate Planning Attorney
Located at 3873 Piedmont Avenue, Suite 8,
Oakland, CA 94611
Phone: (415) 944-9406
Local Phone: (415) 944-9406

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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