LACY Guardianship Representation Project Manual · LACY Guardianship Representation Project 1 Use of LACY Guardianship Representation Project Manual This manual was designed for use

C-0

LACY Guardianship

Representation Project Manual Legal Advocates for Children and Youth A Program of the Law Foundation of Silicon Valley Updated June 2015

LACY Guardianship Representation Project

1

Use of LACY Guardianship Representation Project Manual

This manual was designed for use by pro bono attorneys working with

Legal Advocates for Children and Youth (LACY) through the

Guardianship Representation Project. Much of the information in this

manual is specific to procedures in Santa Clara County. Procedures

differ from county to county, so please consult the local rules of your

county if you are seeking a probate guardianship outside of Santa

Clara County.

This manual does not constitute legal advice or create an attorney-

client relationship. Probate guardianships are fact-specific and should

be analyzed on a case-by-case basis. If you have case-specific

questions, please consult with your LACY mentor attorney.

If you are not an attorney and are seeking information about probate

guardianships, you may want to consult the California court website

(http://www.courts.ca.gov/selfhelp-guardianship.htm) or the Santa

Clara County Superior Court website

(http://www.scscourt.org/self_help/probate/guardianship/guardianship

_home.shtml).

http://www.courts.ca.gov/selfhelp-guardianship.htm

http://www.scscourt.org/self_help/probate/guardianship/guardianship_home.shtml

http://www.scscourt.org/self_help/probate/guardianship/guardianship_home.shtml


2

TABLE OF CONTENTS

Use of LACY Guardianship Representation Project Manual ........................................... 1

I. Legal Advocates for Children & Youth ........................................................................ 5

A. Our Mission ............................................................................................................. 5

B. Our History & Affiliation ......................................................................................... 5

C. Our Projects ............................................................................................................ 6

II. The Guardianship Representation Project .................................................................. 8

A. Purpose ................................................................................................................... 8

B. Who is the Client? ................................................................................................... 8

C. Procedure ................................................................................................................ 9

1. Telephone Screening .......................................................................................... 9

2. Home Visit by LACY Social Worker .................................................................... 10

3. Referral to Pro Bono Counsel ........................................................................... 10

4. Case Acceptance/Non-Acceptance ................................................................... 11

5. Case Status Reports/Timekeeping .................................................................... 11

6. Case Closing ...................................................................................................... 11

7. Insurance .............................................................................................................. 12

III. Overview of Probate Guardianships ..................................................................... 13

A. Families Who Need Guardianship......................................................................... 13

B. Alternatives to Guardianship ................................................................................ 14

1. Informal Care Arrangements ............................................................................ 14

2. Other Courts Making Child Custody Orders ..................................................... 14

IV. Guardianship Law & Procedure ............................................................................ 16

A. Overview ............................................................................................................... 16

1. Sources of Law .................................................................................................. 16

2. Probate Guardianship Defined ......................................................................... 16

3. Types of Guardianships ..................................................................................... 19

4. Venue & Jurisdiction ......................................................................................... 21

5. Fees and Fee Waivers ....................................................................................... 22


3

B. Temporary Guardianships ..................................................................................... 23

1. Definition .......................................................................................................... 23

2. Legal Standard .................................................................................................. 24

3. Noticed Temporary Guardianship..................................................................... 25

4. Ex Parte Temporary Guardianship .................................................................... 26

C. General Guardianships .......................................................................................... 30

1. Legal Standard .................................................................................................. 30

2. Notice ................................................................................................................ 33

3. Court Investigation............................................................................................ 38

4. Hearing .............................................................................................................. 43

5. Post-Hearing ..................................................................................................... 46

V. Special Immigrant Juvenile Status ............................................................................ 51

VI. Step-by-Step Instructions ..................................................................................... 52

A. Instructions for General Guardianship ................................................................. 52

1. Step One: Review the LACY Referral Packet ..................................................... 52

2. Step Two: Meet With Your Prospective Client ................................................. 52

3. Step Three: Call the Probate Court Calendaring Department .......................... 54

4. Step Four: Complete the Required Forms ........................................................ 55

5. Step Five: Meet with the Client to Review and Sign the Guardianship Papers 63

6. Step Six: Prepare the Papers for Filing .............................................................. 63

7. Step Seven: File the Petition ............................................................................. 65

8. Step Eight: Serve the Papers ............................................................................. 66

9. Step Nine: Prepare for the Hearing.................................................................. 68

10. Step Ten: The Hearing ................................................................................... 69

B. Instructions for Noticed Temporary Guardianship ............................................... 72

1. Step One: Prepare Petition for General Guardianship ..................................... 72

2. Step Two: Complete Additional Forms and Attachments for Temporary

Guardianship ............................................................................................................. 72

3. Step Three: Meet with the Client to Review and Sign the Temporary

Guardianship Papers ................................................................................................. 75


4

4. Step Four: Prepare the Papers for Filing ........................................................... 75

5. Step Five: File the Petitions ............................................................................... 76

6. Step Six: Serve the Required Documents ......................................................... 76

7. Step Seven: Prepare for the Temporary Guardianship Hearing ....................... 78

8. Step Eight: The Temporary Guardianship Hearing ........................................... 79

C. Instructions for Ex Parte Temporary Guardianship .............................................. 80

1. Step One: Prepare the Petition for General Guardianship ............................... 80

2. Step Two: Complete Additional Forms and Attachments ................................ 80

3. Step Three: Meet with the Client to Review and Sign the Temporary

Guardianship Papers ................................................................................................. 83

4. Step Four: Prepare the Papers for Filing ........................................................... 83

5. Step Five: File the Petitions ............................................................................... 85

6. Step Six: Follow up with the Court Investigator ............................................... 85

7. Step Seven: File the Remaining Guardianship Papers ...................................... 86

8. Step Eight: Inform Your Client .......................................................................... 87

9. Step Nine: Serve the Required Documents ...................................................... 87

10. Step Ten: Prepare for the Reconsideration Hearing ..................................... 88

11. Step Eleven: The Reconsideration Hearing ................................................... 89

Appendix A: ......................................................................................................................... 1

Forms and Service Checklists .............................................................................................. 1

Appendix B: ......................................................................................................................... 1

Caregivers Authorization Affidavit ...................................................................................... 1

Appendix C: ......................................................................................................................... 2

Sample Cover Letters .......................................................................................................... 2


5

I. LEGAL ADVOCATES FOR

CHILDREN & YOUTH

A. Our Mission

Legal Advocates for Children & Youth (LACY) advances the legal rights

of children and youth, empowering them to lead healthy and

productive lives. We listen to, advise, and advocate for our clients to

ensure their voices are heard and their rights are protected.

B. Our History & Affiliation

LACY was founded in 1990 as a project of the Law Foundation of

Silicon Valley, a private non-profit organization.

The Law Foundation was established in 1974 as one of the nation’s

first bar foundations dedicated to serving the public interest and has

served as a national model for bar-sponsored services in the

community.

The mission of the Law Foundation is to secure justice and protect

human rights by providing legal advocacy, counseling, and access to

the legal system for those who would otherwise be unrepresented.

Other projects of the Law Foundation include Health Legal Services,

Fair Housing Law Project, Mental Health Advocacy Project, and Public

Interest Law Firm.


6

C. Our Projects

LACY works in attorney/social worker teams to provide free legal and

related services to the youth of Santa Clara County through the

following projects:

Commercially Sexually Exploited Children (CSEC) Project:

LACY provides legal and social work services to youth up to age 21

who are, are suspected of being, or are at high risk of being

commercially sexually exploited.

Educational Empowerment Project: LACY assists students

and their caregivers in enrollment, school discipline and special

education matters. Since 2002, LACY has collaborated with the

Department of Family & Children’s Services, Juvenile Probation, and

Morrissey Compton Educational Center through Project YEA! to

provide education advocacy for youth in foster care or in the

juvenile justice system.

Emancipation Project: LACY educates minors, parents, and

service providers on the realities of emancipation. LACY represents

minors who qualify for emancipation in the court process.

Guardianship Project: LACY helps children stabilize their lives

by seeking legal guardianships and preventing minors from

entering the foster care system. Local courts have recognized our

expertise in this area by regularly appointing LACY to represent

children in contested guardianship proceedings.

Juvenile Dependency: LACY attorneys provide representation

in juvenile court to children who have suffered abuse or neglect.

Minors also receive assistance in other legal areas, including

education and immigration.

Medical-Legal Partnership Clinics: LACY’s medical-legal

partnership with the county hospital, Santa Clara Valley Medical

Center, assists children and families with legal issues that impact


7

children’s health and well-being by providing on-site services at the

Bascom and Gilroy Pediatric Clinics.

Refugee Foster Care Program: LACY serves as an

independent review panel for immigrant foster children placed

through Catholic Charities.

Safe Families Project: LACY provides representation and

education for pregnant and parenting teens on paternity, child

custody and support, and visitation matters. In addition, LACY

provides services to victims of teen dating violence. The Superior

Court also appoints LACY to represent children in high-conflict

custody cases.

Transition-Aged Foster Youth Project: LACY helps current

and former foster youth ages 14 to 25 with civil legal issues that

arise as they are transitioning out of the foster care system to

adulthood. Service areas are broad and include education, health

care, housing, employment, public benefits, family law, identity

theft, and other consumer issues. To increase youth access to

services, LACY offers regular drop-in hours, as well as services by

appointment, at a community center for transition-aged foster

youth.


8

II. THE GUARDIANSHIP

REPRESENTATION

PROJECT

A. Purpose

Over one-third of callers to LACY’s intake line inquire about legal

guardianship. Youth callers are seeking ways to make their lives safe

and to find a permanent and stable caretaking arrangement. Adult

callers are seeking help for a child they know who is being abused or

neglected. In many instances, legal guardianship is the best option,

either because Child Protective Services is too overburdened to

intervene or the extended family of this child or other adult has

already stepped in to provide a safe and stable home.

The Guardianship Representation Project was started to respond to the

overwhelming demand for guardianship services. The Project's

objective is to meet the need of our county's children for free legal

representation in guardianship proceedings by recruiting and training

volunteer attorneys who are willing to help. With the support of our

broader legal community, LACY has been able to help thousands of

children over the years.

B. Who is the Client?

In California, children age twelve and older may petition the Probate

Court for legal guardianship. Therefore, if the child is twelve or older,

then he or she is the client. If the child is under the age of twelve, the

client is the proposed legal guardian.

Child is client if twelve or older: If the child is twelve or

older, the pro bono attorney represents the minor as the


9

petitioner, and the petition is brought in the minor's name. The

pro bono attorney may also petition on behalf of a sibling group

as long as one child is over the age of 12 and there is no conflict

of interest among the siblings. If you have any questions about

representing a minor client in these proceedings, please contact

the Law Foundation’s Pro Bono Manager.

Proposed legal guardian is client if child is under twelve:

If the child is under the age of twelve, the petition must be

brought by an adult. In that case, the pro bono attorney

represents the proposed guardian as the petitioner.

LACY recommends that you have the client sign a representation

agreement. LACY can provide a copy of the agreement used by our

staff. Pro bono attorneys should make sure to determine whether

their firm or company requires use of a specific representation

agreement.

C. Procedure

1. Telephone Screening

Each case that is referred to the Guardianship Representation Project

begins with a telephone screening of the child or proposed guardian

conducted by LACY. The purpose of the telephone screening is to:

obtain information concerning the child's need for the

guardianship;

determine whether the guardianship is likely to be contested;

and

ensure that LACY's financial eligibility requirements are satisfied.

Financial eligibility is screened based on the circumstances of the

petitioner. Minor petitioners, those who are twelve and older, are

automatically found financially eligible for pro bono representation.

When the minor is younger than twelve, the income of the proposed

guardian is considered. LACY utilizes the IOLTA financial eligibility


10

guidelines to determine if the proposed guardian qualifies for pro bono

services.

Upon completion of the telephone screening, an intake is prepared and

a Guardianship Questionnaire is sent to the child and proposed

guardian with instructions to fill out the questionnaire completely and

to return it to LACY.

2. Home Visit by LACY Social Worker

Once the Guardianship Questionnaire is returned to LACY, the case is

assigned to a LACY social worker. The LACY social worker visits the

child in the home of the proposed guardian to determine if a

guardianship is appropriate and to gather more information. The

social worker reviews the Guardianship Questionnaire with the child

and proposed guardian and answers questions they may have. After

the home visit, the LACY social worker prepares a Home Visit

Assessment and discusses with the Supervising Attorney whether or

not it is an appropriate case for LACY's Guardianship Representation

Project.

3. Referral to Pro Bono Counsel

The Law Foundation’s Pro Bono Manager will send out an e-mail to the

panel when a new case is ready for assignment. The pro bono

attorney who takes on the case will receive a follow-up referral packet

via email including the following materials:

Case Information

Guardianship Questionnaire

Pro Bono Guidelines

Home Visit Assessment

In addition, the email will specify a LACY mentor attorney that pro

bono counsel should contact prior to beginning the case, and at any

point where additional legal or procedural assistance is needed.


11

The Pro Bono Manager sends the prospective client a letter providing

the attorney's name and phone number. The prospective client is

instructed to call the pro bono attorney within ten days to set up an

appointment.

While LACY screens all cases, there will often be new information

which will come to light once an attorney has agreed to represent the

child or the proposed guardian.

4. Case Acceptance/Non-Acceptance

The pro bono attorney is under no obligation to represent a person

referred to him or her. Only after the attorney has had an opportunity

to meet with the potential client does LACY ask for a decision on

acceptance. After meeting with the child and proposed guardian, the

pro bono attorney informs the Pro Bono Manager of his or her decision

regarding case acceptance. If the pro bono attorney accepts the case,

a representation agreement is signed by the attorney and the client.

5. Case Status Reports/Timekeeping

Case status reports are not required; however, the pro bono attorney

should keep the Pro Bono Manager and mentor attorney apprised of

major developments with the case.

Per the Pro Bono Guidelines, the attorney should maintain a basic

summary of services provided to the client, the names and positions of

the people working on the case, the number of hours spent on the

case, the standard billing rate, and costs incurred. The Law

Foundation is required to report hours of pro bono assistance to our

funders.

6. Case Closing

Once the pro bono attorney has obtained the guardianship or the case

has been resolved, the pro bono attorney should notify the Pro Bono


12

Manger via mail or email. The pro bono attorney will also need to

appropriately conclude representation by informing the client that no

additional assistance will be provided and formally substituting out of

the case with the court.

7. Insurance

Law Foundation’s Professional Liability Insurance Policy covers pro

bono attorneys who volunteer their time on behalf of Law Foundation.

Law Foundation’s insurance policy is intended to provide primary

coverage for all volunteers. The pro bono attorney’s own liability

insurance, if covered, would be secondary. This is subject to the

specific terms and conditions of the specific policies at issue.


13

III. OVERVIEW OF PROBATE

GUARDIANSHIPS

A. Families Who Need Guardianship

The need for a probate guardianship typically arises when an adult

who is not the child’s parent is providing care for the child, and that

adult requires legal authority to make decisions on behalf of the child.

A probate guardianship awards the caregiving adult with physical and

legal custody of the child.

A probate guardianship does not terminate parental rights. The

parents of the child retain the right to visitation with the child and the

obligation to financially support the child. In some cases, the child’s

parent(s) may be in agreement with the appointment of a legal

guardian. For example, if a parent plans to serve overseas in the

military for a number of years or needs to move away for work, the

parent may nominate another adult to serve as their child’s legal

guardian.

More commonly however, a probate guardianship becomes necessary

when a child’s parent is unable to provide consistent care for the child

due to substance abuse, alcohol abuse, unaddressed mental health

issues, domestic violence, abuse, or neglect. Another relative or

family friend has taken on the caregiving responsibilities of the child

due to the parent’s absence or inability to care for the child. While the

issues that confront children in probate guardianships are often the

same as children in juvenile dependency (foster care), a probate

guardianship allows the child to remain in a stable, nurturing home

until adulthood without formally entering the foster care system.


14

B. Alternatives to Guardianship

1. Informal Care Arrangements

A caregiver may not necessarily require a legal guardianship in order

to continue caring for a child. For example, a parent may be in

agreement with an informal care arrangement and may cooperate with

the caregiving adult in providing consent for medical care, educational

decisions, or other situations where the parent’s consent/authority is

required. In addition, a caregiver can obtain public benefits on behalf

of a child without a legal guardianship. A caregiver may also be able

to enroll the child in school, authorize school-related medical care, and

authorize other types of medical care through a Caregiver’s

Authorization Affidavit. Please see the Appendix B to this Manual for a

sample Caregiver’s Authorization Affidavit.

An informal care arrangement without a legal guardianship is not

illegal. It is entirely permissible and within a parent’s purview to allow

their child to live with and be cared for by another adult. However,

under an informal care arrangement, the parent remains free to

remove the child from the caregiver’s home at any time, even over the

child’s objection or at risk to the child’s safety. Thus, an informal care

arrangement may be a risk for both the caregiver and the child. A

legal guardianship may be necessary to ensure that the parent cannot

remove the child at-will from a stable, caregiving arrangement.

2. Other Courts Making Child Custody Orders

Orders regarding legal and physical custody of a child can be made

through other branches of the court besides the Probate Court. Other

courts that make orders regarding child custody include the Juvenile

Court and Family Court. It is important to be aware of these two

branches because they can interact with proceedings in Probate Court.


15

a. Juvenile Court (Dependency/Juvenile Justice)

Child custody can be determined through the three Juvenile Court

jurisdictional sections: Welfare and Institutions Code § 300

(dependency), § 601 (status offense), and § 602 (juvenile

justice/delinquency). If the minor falls within the descriptions of §§

300, 601, or 602, the Juvenile Court may remove custody of the minor

from the parent or other legal custodian by declaring the minor a

dependent child (§ 300) or a “ward” of the court (§ 601 or § 602).

Because children seeking probate guardianships often do so due to

parental neglect, abuse, or abandonment, it is possible for a case to

begin in Probate Court but later transfer to Juvenile Court. This

scenario will be discussed in further detail in this Manual.

If there is an open case in a Juvenile Court regarding the child, the

Juvenile Court has superior jurisdiction over Probate Court and

therefore the guardianship case cannot proceed.

b. Family Court

Child custody can also be determined in Family Court through a

dissolution action (if the parents were married) or a parentage action

(if the parents were never married). If there is an action pending in

Family Court regarding the child (either before or after the

guardianship action is filed in Probate Court), Local Probate Rule 12.C

states that the cases should be coordinated for hearing purposes and

assigned for hearing to the Probate Court. The Rule further explains

that the cases will be linked in the court’s case management system,

so that the judicial officer hearing the matter is made aware of the

existence of the other case or cases.

In addition, under California Rule of Court 5.24, the proposed guardian

can be joined to the Family Court action as a party and can be

awarded full or joint custody by the Family Court.


16

IV. GUARDIANSHIP LAW &

PROCEDURE

A. Overview

1. Sources of Law

Probate guardianship proceedings in Santa Clara County are governed

by California Probate Code sections 1400 through 3925, California

Rules of Court 7.1 through 7.1101, and Local Probate Rules of Court.

Provisions of the California Family Code regarding child custody and

visitation also play an important part in the court’s analysis.

The Probate Code can be accessed at:

http://leginfo.legislature.ca.gov/faces/codes.xhtml

The California Rules of Court can be accessed at:

http://www.courts.ca.gov/rules.htm.

The Local Probate Rules of Court can be accessed at:

http://www.scscourt.org/court_divisions/probate/probate_rules/

probate_rules.shtml.

2. Probate Guardianship Defined

The California Probate Code authorizes guardianships over a minor's

person ("guardianship of the person").1 Legal guardianship of the

minor suspends the parents' right to the care, custody, control, and

charge of their child and vests those powers and duties with some

1 The California Probate Code also authorizes guardianships over a minor’s

estate. This manual does not address establishment of guardianships of the

estate. If the pro bono attorney discovers the minor has an inheritance of

other assets, please contact the Law Foundation Pro Bono Manager for

guidance.

http://leginfo.legislature.ca.gov/faces/codes.xhtml

http://www.courts.ca.gov/rules.htm

http://www.scscourt.org/court_divisions/probate/probate_rules/probate_rules.shtml

http://www.scscourt.org/court_divisions/probate/probate_rules/probate_rules.shtml


17

other adult or adults. (Prob. Code § 2351.) It does not permanently

terminate parental rights.

In a probate guardianship, the minor is called the “ward.” The Probate

Court use of the term "ward" in the Probate Code is not related to the

Juvenile Court use of the term in the Welfare and Institutions Code.

(Welf. & Inst. Code §§ 601, 602.)

a. Duties of a Probate Guardian

Once the court orders a legal guardianship, the guardian assumes

statutory rights and responsibilities that must be fulfilled until the

guardianship is terminated. (Prob. Code § 2310.) The guardian must

make a written oath to this effect on the Letters of Guardianship form.

(Prob. Code § 2310.) The duties of a legal guardian include:

Fiduciary Relationship: The relationship of the guardian and

the ward is a fiduciary relationship. (Prob. Code § 2101.) This

means that the guardian must not act adversely to the interests

of the minor.

Care, Control, Custody, and Education of the Ward: The

legal guardian has the duty and the responsibility for the care,

custody, control, and education of the ward. (Prob. Code §

2351(a).)

Residence of the Ward: The legal guardian may determine

the residence of the ward as long as it is within California.

(Prob. Code 2352(a).) The legal guardian must mail notification

of change of a residence of the minor to the court within 30

days. (Prob. Code § 2352(e).) Permission of court is required if

the legal guardian intends to have the ward reside out of state

or country. (Prob. Code § 2352(c).) If the court grants the

legal guardian permission to move the minor out of state, the

legal guardian must begin a guardianship or equivalent

proceeding in the new state within four months. (Prob. Code §

2352(d).)

Medical Treatment of the Ward: The guardian has most of

the same rights as a parent to give consent to medical


18

treatment for the ward. The guardian's right is limited in the

case of surgery on a ward fourteen years or older; no surgery

can be performed upon the ward without the consent of the

ward and guardian, or a court order. (Prob. Code § 2353(b).)

However, if the ward requires emergency surgery without which

the ward faces loss of life or serious bodily injury, then consent

of the guardian alone is sufficient. (Prob. Code § 2353(c).)2

Financial support: Even when the child has a guardian, the

parents are still obligated to financially support the child. The

guardian may take action to obtain child support. The child

and/or the guardian may also be eligible for public assistance

including CalWORKS (relative guardians), AFDC-FC benefits

(non-relative guardians), Medi-Cal, CalFRESH (food stamps),

Social Security benefits (SSI/SSP), Veterans Administration

benefits, and Indian child welfare benefits. If the guardian

receives public assistance for the child, Santa Clara County

(through the Department of Child Support Services) may initiate

a child support case against the parents, seeking some

reimbursement of the public assistance provided. If your client

has specific questions regarding financial support, you can

consult with your LACY mentor attorney.

2 Note: A minor has the right, independent of a parent or guardian, to make

decisions regarding the following medical treatment: surgical care related to the

prevention of a contagious disease (Fam. Code §§ 6920, 6921, 6926), and care

related to the diagnosis and/or treatment of pregnancy (Fam. Code §§ 6920,

6921, 6925), sexual assault or rape (Fam. Code §§ 6920, 6921, 6927, 6928),

and a drug or alcohol related problem (Fam. Code § 6920, 6921, 6929). A

minor, twelve or older, (A) who, in the opinion of the attending professional

person, is mature enough to participate intelligently in mental health treatment,

and (B) who presents a danger of serious physical or mental harm to herself or

others without treatment or who is an alleged victim of incest or child abuse,

has the right to consent to mental health or counseling services on an

outpatient basis. (Fam. Code §§ 6920, 6921, 6924.)


19

3. Types of Guardianships

a. General Guardianships

Guardianships of the person are obtained on a "general" or long-term

basis. A “general” guardianship is not time-limited – it lasts until the

minor turns eighteen or until it is terminated by an order of the court.

Hearings on general guardianships are set ten weeks from the date of

filing in Santa Clara County.

b. Temporary Guardianships

Temporary guardianships may be sought at the same time as general

guardianships if there is an urgent need for legal authority pending the

hearing on the general guardianship. (Prob. Code § 2250.) For

example, the proposed guardian may be unable to consent to needed

medical care for the child, or a parent may be threatening to remove

the child from the proposed guardian’s care. Local Probate Rule

12.M.(1) explains that a temporary guardianship is necessary when

the child's situation requires immediate attention to protect his or her

health or welfare.

A temporary guardian of the person has those powers and duties

necessary to provide for the temporary care, maintenance, and

support of the minor. (Prob. Code § 2252.)

PRACTICE TIP!

California law contemplates guardianship as a long-term care

arrangement. Therefore, a petition for temporary guardianship may

not be filed on its own. Rather, a petition for temporary guardianship

must always be filed with a petition for general guardianship.

Remember, the purpose of the temporary guardianship is to give

proposed guardians necessary legal authority during the period of time

between the filing of the guardianship petition and the hearing on the

general guardianship ten weeks later.


20

Temporary guardianships may be obtained in one of two ways: on an

ex parte basis or after a noticed hearing.

(1) Noticed Temporary Guardianships

When there is an urgent need to establish a legal

guardianship and there is sufficient time to notice the

parents and such notice would not be detrimental to the

child, a noticed temporary guardianship is appropriate.

As the term suggests, the temporary guardianship is

established following notice to the parents and a hearing.

(2) Ex Parte Temporary Guardianships

Ex parte temporary guardianships are sought when the

situation is such an emergency that there is no time to

provide notice to the parents and hold a hearing before

the temporary guardianship needs to granted. Ex parte

temporary guardianships are also sought when it would

be detrimental to provide notice to the parents. As the

term suggests, an ex parte temporary guardianship is

established without notice to the parents or a hearing.

However, following establishment of the temporary

guardianship, the parents will receive notice and an

opportunity to be heard at a “reconsideration hearing.”

c. Co-Guardianships & Joint Guardianships

Some general guardianships are referred to by the terms “co-

guardianship” or “joint guardianship.”

(1) Co-Guardianship

A “co-guardianship” is simply a general guardianship in which

two adults are working together to care for the minor.

(2) Joint Guardianship

A “joint guardianship” is a special type of guardianship that

allows a custodial parent who is terminally ill and a person


21

nominated by the parent to be appointed as joint guardians of

the person of the minor. (Prob. Code § 2105.) The Legislature

added this provision to allow a parent with a terminal condition

the ability to make arrangements for the joint care, custody,

and control of the minor children. In addition, the provision is

intended to minimize the emotional stress of, and disruption for,

the children when the parent becomes incapacitated or dies.

Joint guardianship with a parent avoids the need to provide a

temporary guardian or place the children in foster care pending

the appointment of a guardian.

4. Venue & Jurisdiction

a. Venue: Which California county is the proper venue?

The proper venue for beginning a guardianship proceeding is either the

county in which the proposed ward lives or such county as may be in

the best interest of the proposed ward. (Prob. Code § 2201.)

Typically, the issue of the proper venue arises when a parent lives in a

different county and the minor, until recently, has lived with the

parent. A parent will sometimes request that the judge allow the case

be heard in the county where the parent lives. In those cases, the

attorney must argue why it is in the minor's best interest for the judge

to hear the case in Santa Clara County. California Rule of Court

7.1014 governs communications between courts in different California

counties concerning guardianship venue.

b. Jurisdiction: Which state has jurisdiction over the

minor?

If the minor came from another state, there may be jurisdictional

issues. The Uniform Child Custody and Jurisdiction and Enforcement

Act (UCCJEA) is the applicable federal law governing which state has

jurisdiction. Forty-nine states, including California3 have codified the

UCCJEA to provide some direction and consistency, with the goal of

3 California has codified the UCCJEA in Family Code sections 3400 et seq.


22

preventing adults from “kidnapping” children or forum shopping.4 The

UCCJEA governs both when a court has jurisdiction to enter an initial

custody determination and to modify an existing order.

The analysis begins by determining a minor’s “home state.” California

is considered the home state of a minor who has resided here for the

six months immediately preceding the filing of the petition. (Fam.

Code § 3421.) The minor’s home state has jurisdiction to make an

initial custody determination. In cases where California is not the

minor’s home state, the court can exercise “temporary emergency

jurisdiction.” This authority is reserved for situations where the minor

has been abandoned in California or is at risk for suffering

maltreatment or abuse. (Fam. Code § 3424.) The UCCJEA then

requires the California court to communicate with the court of the

minor’s home state to decide which court will ultimately hear the case

and assert final jurisdiction over the matter.5

In all cases, when filing for guardianship, the petitioner must file a

Declaration Under Uniform Child Custody Jurisdiction and Enforcement

Act stating the minor’s addresses for the past five years.

5. Fees and Fee Waivers

Before a guardianship petition can be filed, the petitioner must either

pay the court filing fee (currently $225) or obtain a fee waiver. There

is also a significant fee for the court investigation (currently $900),

which may also be waived. If the petitioner is the minor, the fee

waiver forms are completed on behalf of the minor. When the minor is

not receiving public assistance, information regarding the minor’s

gross monthly household income must be given, which includes the

income of the proposed guardian(s) in Santa Clara County. If the

petitioner is the proposed guardian, the fee waiver forms are

completed on behalf of the proposed guardian.6

4 The only state yet to codify the UCCJEA is Massachusetts. 5 Please note that this section provides a very brief overview of issues raised

under the UCCJEA. 6 Note that the guidelines LACY uses to screen for financial eligibility for pro

bono services are slightly higher than the amounts established by the court


23

B. Temporary Guardianships

1. Definition

Temporary guardianships legally transfer custody from the parent to

the proposed guardian on a temporary basis. (Prob. Code § 2252.)

Statutorily, a temporary guardianship terminates automatically in

thirty days unless a general guardian is appointed earlier or the Court

extends the time of termination based on good cause. (Prob. Code §

2257.) In Santa Clara County, the Probate Court will find good cause

and extend the termination date of any temporary guardianship to the

date of the hearing on the general guardianship. (Local Probate Rule

12.M(4).) A petition for temporary guardianship is filed at the same

time as the petition for general guardianship.

If you believe a temporary guardianship is necessary in your case,

please consult with your LACY mentor attorney, as the procedures

around temporary guardianships in Santa Clara County change often.

a. Duties and Rights of Temporary Guardian

A temporary guardian has the powers and duties of a guardian that

are necessary to provide for the temporary care, maintenance, and

support of the child. (Prob. Code § 2252.) A temporary guardian can

also consent to medical treatment or surgery for the child. (Prob.

Code §§ 2252(b), 2253.)

for purposes of fee waivers. In most cases, the proposed guardians that we

refer to pro bono attorneys are eligible for fee waivers. In very rare cases,

the proposed guardian is eligible for our services but not eligible for a fee

waiver. If the pro bono attorney determines that the proposed guardian does

not qualify for a fee waiver, then the proposed guardian must pay the court

fees.


24

2. Legal Standard

a. Good Cause

A petition for temporary guardianship must establish “good cause” for

appointment of a temporary guardian. (Prob. Code § 2250.) In other

words, the petitioner must show why it is necessary for the child to

have a temporary guardian in the ten weeks between the time the

petition is filed and the hearing on the general guardianship. Thus, a

temporary guardianship is not necessary in every case, but may

be warranted in certain situations.

b. Requirement of Urgency

Local Probate Rule 12.M(1) instructs that the petition must state facts

establishing the urgency requiring the appointment of a temporary

guardian. A situation requiring immediate action to protect the health,

welfare, or the estate of the child will be sufficient. Ordinarily, a

situation requiring immediate action constitutes good cause. (Local

Probate Rule 12.M.(1).)

Some of the most common reasons for seeking a temporary guardian

are:

The parent has physically abused the child.

There is a real threat that the parent may forcibly remove the child

from the home of the proposed guardian and physically harm the child.

The child has reason to fear the parent.

The child believes the parent is going to remove the child from the

proposed guardian's home and hurt him/her. In this case, the child's

fear may interfere with his/her ability to function and temporary

guardianship may be necessary to relieve the child's anxiety and allow

the child to function.


25

The child needs urgent medical attention.

In order for temporary guardianship to be granted based on the need

for medical attention, the medical problem must be one that cannot

wait for the general guardianship to be granted.

The proposed guardian needs financial assistance to continue

caring for the child.

The proposed guardian is entitled to public benefits. While this reason

alone may not be sufficient for the court to grant a temporary

guardianship, in conjunction with other factors above, it may warrant a

temporary order.

Local Probate Rule 12.J.(2) states that all petitions for a temporary

guardianship must be presented to the Probate Examiner's office for

review prior to being filed with the Court.

3. Noticed Temporary Guardianship

In Santa Clara County, hearings on temporary guardianship are set

approximately three weeks from the date of filing.

Notice of the hearing and a copy of the petition for temporary

guardianship must be personally served on the child (only if the child

is over 12 years of age and is not the petitioner), the parents of the

child, and any person having a valid visitation order with the child

effective at the time of the filing of the petition. (Prob. Code §

2250(e).) Notice must be served at least 5 court days prior to the

hearing.

A noticed temporary guardianship is appropriate only if the child does

not need court orders in sooner than three weeks, and/or if the child

would not be harmed by providing notice to the parties requiring

notice, in particular the child’s parents.


26

4. Ex Parte Temporary Guardianship

If a temporary guardianship is required in sooner than three weeks, or

providing notice could harm the child, the court may grant a

temporary guardianship on an ex parte basis—without a hearing and

without notice to the parties in Probate Code section 2250(e).

The effect of an ex parte temporary guardianship is the same as that

of a noticed temporary guardianship – the custody of the minor is

legally transferred from the parent or parents to the temporary legal

guardian until the date of the hearing on the general guardianship.

However, because temporary orders are granted without notice, there

are some important differences in the procedure for obtaining an ex

parte temporary guardianship.

Orders regarding an ex parte temporary guardianship can take

anywhere between 2 weeks to one month to issue. If you believe an

ex parte temporary guardianship is necessary in your case, please

consult with your LACY mentor attorney.

a. Immediate and substantial harm

Notice of the temporary guardianship may be waived by the court for

“good cause.” (Prob. Code § 2250(e).) “Good cause” for an exception

to notice must be based on a showing that the exception is necessary

to protect the proposed ward from immediate and substantial harm.

(Cal. Rule of Court 7.1012.)

The petition must spell out the emergency that requires a temporary

guardianship right away, and/or the danger that could occur if notice is

given to the child’s parents prior to the court making some temporary

orders. For example, if a parent is threatening to take the child from

the proposed guardian’s care to an unsafe environment, the petitioner

may argue that notice to such parent could cause the parent to

remove the child immediately.

If the court does not waive notice altogether, the court may require

the parents or a party with a valid visitation order to be noticed in an


27

alternate way—for example, by telephone, email, or fax—rather than

personal delivery.

PRACTICE TIP!

Requesting an ex parte temporary guardianship is appropriate if you

believe that giving notice of the guardianship proceeding to the parent

will cause the parent to immediately remove the child from the

proposed guardian’s care and take the child to a potentially unsafe

situation. For example, the child has been living with the proposed

guardian for several months because the parent has an alcohol

addiction, but now the parent is leaving daily voicemails to the

proposed guardian threatening to take the child. It is also appropriate

to request an ex parte temporary guardianship if the child needs a

temporary guardianship in less than three weeks, and there is not

enough time to give notice to a parent. For example, the child needs

an urgent medical procedure within a week and the proposed guardian

cannot consent to the procedure without a temporary guardianship.

Talk to your client about whether there is a threat to the child’s safety

or other urgency to help you determine whether an ex parte

temporary guardianship is required, or whether a noticed temporary

guardianship is more appropriate. You should also with your LACY

mentor attorney for guidance.

b. Reconsideration Hearing

If a temporary guardianship is granted ex parte, the court must set a

reconsideration hearing within 30 days of granting the temporary

guardianship – to reconsider the granting of the temporary

guardianship.

Notice of the hearing for reconsideration of the temporary

guardianship must be served at least 15 days before the

reconsideration hearing to all the parties entitled to notice of the

general guardianship in Probate Code section 1511. Additional time is

required for parties give notice by mail (at least 20 days before if the

party is in California, at least 25 days before if the party is outside of


28

California but still in the United States, and at least 35 days before if

the party is outside of the United States). The court may for good

cause shorten the time for the notice of the hearing. (Prob. Code

§2250(f).)

At the reconsideration hearing, parties have the opportunity to appear

and state their objections to the temporary and/or general

guardianship. At the reconsideration hearing, the court will only

consider whether the temporary guardianship should remain in place

until the hearing on the general guardianship. If the objecting party

has not filed their objections in writing, the court may encourage them

to do so. The court may also refer the parties to a Family Conference

to discuss temporary visitation, and may issue orders regarding

temporary visitation if appropriate.

c. Order Pending Hearing in Santa Clara County

In Santa Clara County, while the petition for an ex parte temporary

guardianship is pending, the court may grant an “Order Pending

Hearing.” An Order Pending Hearing is an interim order pending a

noticed hearing or the passage of 30 days, whichever comes first.

Generally, the court will make a decision on the ex parte temporary

guardianship before the Order Pending Hearing expires.

The Order Pending Hearing states that the child shall be in the

temporary custody of the proposed guardian and shall not be removed

from his or her current residence and any school or childcare or the

state of California, absent further court order or written agreement of

all interested persons. The Order Pending Hearing also grants the

temporary custodians with the authority to make health care and

educational decisions on behalf of the minor. Essentially, the Order

Pending Hearing ensures the child’s placement with the proposed

guardian until the court makes a decision on the ex parte temporary

guardianship.

Order Pending Hearings are generally issued on the same day the

guardianship papers are filed. It is appropriate to request an Order

Pending Hearing if a parent(s) is actively threatening to remove the

child from the home of the proposed guardian and take the child

elsewhere unsafe. Less commonly, an Order Pending Hearing can be


29

requested if the child requires a court order for an urgent medical

procedure.

The Order Pending Hearing automatically terminates in 30 days unless

a prior noticed hearing directs otherwise. The Order Pending Hearing

also directs any person who objects to the Order to contact the court

(and provides an address and phone number) to request a hearing. If

any person contacts the court to object, a hearing is set for the

soonest available date – generally the immediate following Tuesday

morning. At that hearing, the court will hear any objections and

determine whether the Order Pending Hearing should remain in place.

If you believe an Order Pending Hearing is necessary in your case,

please consult with your LACY mentor attorney.


30

C. General Guardianships

1. Legal Standard

a. Necessary and Convenient

The Probate Court may appoint a guardian of the person whenever it is

"necessary and convenient." (Prob. Code § 1514.) When making

custody determinations, the Probate Court is governed by Family Code

sections 3020 et. seq. and 3040 et. seq. relating to custody of a

minor. (Prob. Code § 1514(b)(1).)

b. Awarding Custody to Non-Parent Over Parent’s

Objection

In order to award custody of a minor to a non-parent over the parent’s

objection, the Probate Court must find by clear and convincing

evidence that: (1) custody with the parent(s) would be detrimental to

the minor; and (2) it would be in the best interests of the minor to

grant custody to the proposed guardian. (Fam. Code § 3041(a).)

Allegations that parental custody would be detrimental to the child,

other than a statement of that ultimate fact, cannot appear in the

pleadings. (Fam. Code § 3041(a).) Therefore, such allegations, if they

are necessary, should be presented by confidential declaration.

Whether parental custody would be detrimental is determined based

on the unique facts of the individual case. Guardianship of Olivia J.

(2000) 84 Cal. App. 4th 1146, 1157. In guardianship proceedings,

unlike in Juvenile Court dependency proceedings, the court does not

have to find the parents unfit. (Fam. Code. § 3041(c).)

(1) De Facto Parent & Burden Shift

Detriment to the child “includes the harm of removal from

a stable placement of a child with a person who has

assumed, on a day-to-day basis, the role of his or her

parent, fulfilling both the physical needs and the child's

psychological needs for care and affection, and who has


31

assumed that role for a substantial period of time.”

(Fam. Code. § 3041(c).) Such a person is commonly

referred to as a “de facto parent.”

If the court finds by a preponderance of the evidence that

the proposed guardian has served as a de facto parent,

this constitutes a finding that the guardianship is in the

best interest of the child and that parental custody would

be detrimental. (Fam. Code § 3041(d).) In such cases,

the burden of proof shifts to the parent to show by a

preponderance of the evidence that parental custody

would not be detrimental and that the guardianship would

not be in the best interest of the child.

c. Other Considerations in Granting Custody

(1) Risk Factors

Factors that weigh heavily in the Court’s analysis include

indications of domestic violence, physical or emotional

abuse, unaddressed alcohol or substance abuse,

unaddressed mental health issues, and signs of neglect.


32

PRACTICE TIP!

It is important to discuss with your client both the pros and cons of

including particular allegations in the guardianship petition.

Remember that the guardianship petition is not confidential and will be

part of the public record. Allegations about why parental custody

would be detrimental are not permitted in the pleadings, but if needed,

they can be filed in a confidential declaration. However, parents and

relatives will get a copy of both the guardianship petition and any

confidential declarations.

If the parent(s) agrees with the guardianship, it is sufficient to only

include facts showing why the guardianship is necessary or convenient

(why the guardianship is beneficial for the child), and not include

details about past abuse or neglect.

Even if the parent does not agree with the guardianship, you should

include only those allegations necessary to warrant a finding that the

guardianship is in the best interest of the child and that parental

custody would be detrimental, without including some of the worst

events that transpired. This may avoid angering a parent who might

otherwise agree to the guardianship. It can also avoid some of the

tension between the minor and parent that may result from the

petition and preserve the relationship between the minor and the

parent after the guardianship is established.

(2) Minor’s Wishes

If the child is of sufficient age and capacity to reason so

as to form an intelligent preference as to custody or

visitation, the court is required to consider and give due

weight to the wishes of the child. (Prob. Code §

1514(b)(1); Fam. Code § 3042.) In addition, minors over

12 years of age may have the right to address the court

directly. (Fam Code § 3042; Cal. Rule of Court 7.1016.)


33

PRACTICE TIP!

In LACY’s experience, the desires of minors, especially those 12 years

of age or older, carry significant weight with the Court, particularly

when an emotional bond between the minor and the proposed

guardian can be shown. In addition, an older child’s adamant refusal

to live with his/her parents is usually an important factor in the judge’s

decision.

(3) Parent’s Nomination

The court must consider and give due weight to a

parent's nominated choice for a guardian. (Prob. Code §

1514; Fam. Code § 3043.)

(4) Order of Preference in Granting Custody

In granting custody according to the best interest of the

child, the court's first preference is to award custody to

both parents jointly or to either parent unless the legal

standard of detriment is met. The second preference, if

custody cannot be granted to either parent, is to grant

custody to the person in whose home the child has been

living in a wholesome and stable environment. (Fam.

Code § 3040.)

2. Notice

Notice requirements are strict and jurisdictional. (Prob. Code §§ 1511,

1516, 1542.) The Notice of Hearing and Petition must be served on

certain individuals and agencies at least 15 days (with additional time

added for service by mail) before the hearing on the Petition. (Prob.

Code § 1511(a).) Any individual entitled to notice can consent to the

guardianship and agree to waive notice by signing a Consent and

Waiver of Notice form (GC-211). In such instances, that individual is

not required to be served.


34

a. Notice by Personal Service

The minor if twelve or older (and if not the petitioner), the parents,

any person having legal custody of the minor (if not the parents), and

any person nominated as guardian of the minor must be personally

served with the notice of hearing and petition for guardianship at least

15 days before the hearing on the general guardianship. (Prob. Code §

1511(b).)

If it is anticipated that the individual requiring personal service will be

cooperative, the Notice of Hearing and Petition for guardianship can be

mailed to him or her, along with a Notice and Acknowledgement of

Receipt form (POS-015). If the Notice and Acknowledgement is

returned and filed, the court will accept it instead of personal service.

This method should not be relied upon as a substitute for personal

service unless you are confident that the Notice and Acknowledgement

form will be signed and returned in a timely manner.

b. Notice by Mail

The minor’s maternal and paternal grandparents and the minor’s

siblings—the minor’s relatives to the second degree— and the

proposed guardian (if not the petitioner) must be given notice by mail.

(Prob. Code §§ 1510(c), 1511(c).) Notice to siblings under the age of

twelve is not required, if notice is properly given to, or the petition is

brought by, a parent, guardian, or other person having legal

custody of the minor with whom the minor resides. (Prob. Code

§1460.1.)

In addition, Social Services agencies must be given notice by mail.

(Prob. Code § 1511(d).) If the proposed guardian is a relative of the

child, the Program Manager of Emergency Response Services within

the Social Services Agency must be served. If the proposed guardian

is a non-relative, the Program Manager of Emergency Response

Services within the Social Services Agency, the Department of Family

and Children’s Services within the Social Services Agency, and the

California Department of Social Services must be served. (Prob. Code

§ 1542; Local Probate Rule 12.B(2).)


35

The notice must be mailed at least 20 days before the hearing on the

general guardianship if the party being served is in California, at least

25 days before if the party is outside of California but still in the United

States, and at least 35 days before if the party is outside of the United

States. (Code of Civ. Proc. § 1013(a).)

c. Dispensing with Notice

The court can dispense with notice or prescribe another manner of

notice if reasonably diligent efforts have been made to locate the

relative’s whereabouts and the relative cannot be found. (Prob. Code

§ 1511(g)(1).) Reasonably diligent efforts include talking to the minor

and anyone in the minor’s life who may have information about the

relative’s whereabouts. Efforts also include Internet searches on

Google and Facebook, online telephone directory searches, and

searches on Accurint or other appropriate search database to which

the attorney has access.

If despite reasonably diligent efforts a relative cannot be located,

attorneys should file a Request to Dispense With Notice with a

supporting declaration, detailing the attempts that have been made to

locate the person and justifying why notice should be waived. If the

child has never met the relative or has not had contact with the

relative for many years, that information can also be presented in the

declaration. The Probate Court will require more extensive diligence in

locating the minor’s parents than other relatives, therefore every effort

to find the minor’s parents should be made.

d. Notice Contrary to Interests of Justice

An exception to the notice requirement may also be made upon a

finding by the court that giving notice would be contrary to the

interests of justice. (Prob. Code § 1511(g)(2).) A Request to Dispense

with Notice and a supporting declaration should be filed stating why

notice would be contrary to the interests of justice.


36

PRACTICE TIP!

During your first meeting with your client, take some time to explain

to them in detail who will be receiving notice of the court hearings and

a copy of the Petition. Sometimes, clients may not want parents or

certain relatives to know about the guardianship case. This may affect

the client’s decision about whether they want to pursue a guardianship

altogether or whether they prefer other informal care arrangements.

Having this discussion about who will be receiving notice early in the

case will also help your client understand later why it is important to

be sensitive about which facts are alleged in the Petition.

e. Indian Child Welfare Act (ICWA)7

Under the Indian Child Welfare Act (ICWA), notice must be given to all

Indian tribes to which a child may belong, of any pending “involuntary

child custody proceedings.” 25 U.S.C. § 1912. Thus, in probate

guardianships, proposed guardians and the minor must be asked if the

minor may have any Indian heritage. If there may be some Native

American ancestry, the tribe must be notified of the pending

guardianship proceeding. If you believe that ICWA is implicated in

your case, please consult with your LACY mentor attorney for

guidance.

The Notice of Hearing (GC-020) must be sent, along with:

A copy of the Petition for Appointment of Guardian of Minor

(Form GC-210(P) including GC-210(CA))

Notice of Child Custody Proceeding for Indian Child (ICWA-030)

These documents must be sent by registered or certified mail, with

return receipt requested, to any and all tribes of which the child may

be a member or may be eligible for membership. Additional notice by

first class mail is recommended. The notice should be sent to the tribal

chairperson, unless the tribe has designated another agent for service.

7 LACY would like to acknowledge and thank Legal Services for Children (LSC)

in San Francisco, California for allowing us to consult the LSC Guardianship

Manual in crafting the ICWA portion of this manual.


37

The Secretary of the Interior periodically updates and publishes in the

Federal Register (see 25 C.F. R. 23.23), a list of tribe names and

addresses. The Bureau of Indian Affairs also keeps a list. You can link

to the Federal Register list, another list of tribes maintained by the

California Department of Social Services, and other resources related

to ICWA maintained on the California Department of Social Services

website: http://www.childsworld.ca.gov/PG2070.htm. The list of tribes

maintained by the Department of Social Services is very helpful, but

not official, nor is there any authority to use the address in that list

over different agents for service listed in the Federal Register. If the

official list and the state’s list differ on a tribal address, it is a good

idea to send copies of the Notice and other documents to both

addresses.

If you know the identity and location of the parent, Indian custodian,

and the tribe or tribes, when you send the Notice to the parent, Indian

custodian, and the tribe or tribes, you must also send copies to:

The Secretary of the Interior at 1849 C Street N.W., Washington

D.C. 20240

The Sacramento Area Director, Bureau of Indian Affairs, Federal

Office Building, 2800 Cottage Way, Sacramento, CA 95825.

If you do not know the identity of the child’s parents, Indian custodian,

and tribe or tribes, you most send copies of the Notice and other

documents to the Sacramento Area Director at the address above.

A sample ICWA notice letter to an Indian tribe for notification of a

pending probate guardianship involving an Indian child, as well as the

Judicial Council ICWA Information Sheet (ICWQ-005-INFO) are

included in the appendix to this manual. Proper notice should be

written in clear and understandable language and provide as much

information as possible, including:

Child’s name, birth date and birthplace;

Name of the Indian tribe or tribes in which the child is a

member or may be eligible for membership;

http://www.childsworld.ca.gov/PG2070.htm


38

Names, if known, and current and former addresses of the

child’s mother, father, maternal and paternal grandparents and

great grandparents or Indian custodians, including maiden,

married or former names or aliases;

Copy of the petition, complaint, or other document initiating the

proceeding.

Notice should be sent whenever there is reason to believe that a child

may have Indian heritage, and for every hearing thereafter unless and

until it is determined that ICWA does not apply to the particular case.

If, after a reasonable time following the sending of notice, but in no

event less than sixty (60) days, no determinative response to the

notice is received, the court may determine that ICWA does not apply

to the case unless further evidence on the applicability of ICWA is later

received. Child custody proceedings, including guardianships, cannot

proceed to hearing until at least ten (10) days after receipt of the

notice by the tribe. If a tribe responds to the notice within the ten days

and requests a continuance, a twenty (20) day continuance must be

granted.

3. Court Investigation

a. Scope of Investigation

Unless waived by the court, a court investigator must conduct an

investigation and file a report and recommendation with the court

concerning the proposed guardianship (Prob. Code § 1513.) While the

report and recommendation are designated “confidential,” all parties

receive a copy. (Prob. Code § 1513(d).) The confidential designation

simply means that they are not part of the public record.

If the proposed guardian is a relative, the investigation is conducted

by a Probate Court investigator. (Prob. Code § 1513(a).) A “relative”

is a spouse, parent, stepparent, brother, sister, stepbrother,

stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first

cousin, or any person denoted by the prefix “grand” or “great,” or the

spouse of any of these persons, even after the marriage has been

terminated by death or dissolution. (Prob. Code § 1513(g).)


39

If the proposed guardian is a nonrelative, the investigation is

conducted by the Department of Family and Children’s Services

(DFCS). (Prob. Code § 1513(a).) However, any investigation

concerning temporary guardianship will still be conducted by a Probate

Court Investigator. The Probate Court Investigator will then refer the

matter to DFCS for full investigation concerning the general

guardianship.

The court investigator will conduct a home visit, conduct background

checks of the proposed guardian and any other adults living in the

home, and will check for current and past Child Protective Services

(CPS) investigations involving the children or the proposed guardian.

b. Court Investigator Recommendation

Most court investigators’ recommendations favor the guardianship.

One reason for this is that the standard for a probate guardianship is

less strict than the requirements for becoming a foster parent – certain

allegations against a proposed guardian or another adult living in the

home that can be overcome for a probate guardianship would bar

foster care placement. Even if there are factors that weigh against a

guardianship, the investigators in this county typically understand that

the proposed guardianship may be the best alternative the minor has.

When the minor is a teenager, the investigators may perceive that the

minor can take care of him or herself in a marginal situation.

If the investigator recommends against the guardianship there

probably is a significant reason. Some examples include prior child

abuse by the proposed guardian or someone living in that home, a

significant criminal record, a dangerous home environment, or the

investigator believes that the child should return to the parent(s).

In large part, the strategy for dealing with such an objection depends

on the reason for the negative recommendation. For this reason, it is

important to get a copy of the recommendation (or at least a verbal

disclosure from the investigator) prior to the hearing. Some objections

can easily be corrected or explained, and the court investigator will be

open to receiving more information from the attorney that may affect

their recommendation.


40

If the proposed guardian has a record of substantiated child abuse or

pending criminal matters, it is less likely that the court will grant the

guardianship.

It is important to develop rapport with your client and explain to the

proposed guardian that it is important to be honest with you regarding

any previous criminal record or anything else in their history (or that

of other adults in the home), which might affect the outcome of the

recommendation. Past criminal history may not ultimately bar a

guardianship, but it must be fully disclosed in the guardianship papers

in order to preserve the client’s credibility with the court investigator

and the court.

PRACTICE TIP!

Ask your client to call you after the court investigator comes to the

home to conduct the home visit. You can also ask your client to note

the name of the investigator. Then, you can call the Court

Investigations unit (408-882-2761), ask for the specific court

investigator if you know the name, and check in with the investigator

to see if there is any additional information he/she needs that you can

provide. Talking to the court investigator prior to the hearing will give

you a sense of whether the investigator has any concerns or plans to

recommend that the guardianship be granted. It may also allow you

to clear up any discrepancies before the investigator prepares her

report and recommendation.

If you have not received a copy of the report the week prior to the

hearing on the general guardianship, call the court investigator and

request that a copy be faxed to you when it is complete.

c. Referral to DFCS for Dependency Investigation

If there are allegations of abuse or neglect as defined in section 300 of

the Welfare and Institutions Code, the court may refer the case to the

Department of Family and Children's Services (DFCS) for a

dependency investigation – to determine whether a juvenile


41

dependency proceeding should be initiated. (Prob. Code § 1513(b).)

Generally, the court takes this step only in cases where the court

investigator recommends that such a referral be made.

Situations commonly leading to a DFCS referral include: concerns

about the fitness of the proposed guardian, the child was previously

the subject of a juvenile dependency proceeding, the child may be at

immediate risk of harm, the child has been allegedly abused by a

parent, or an objecting parent may be unfit to care for the child but

remains heavily involved in the child’s life. If the court investigator is

recommending a referral to DFCS (or if the court independently orders

a referral to DFCS), you should consult with your LACY mentor

attorney right away.

The guardianship matter is continued pending completion of the DFCS

investigation. The court can still make orders pending the DFCS

investigation, such as issuing a temporary guardianship. (Prob. Code §

1513(b).)

If DFCS concludes that there is no a basis to initiate dependency

proceedings, the Probate Court will retain jurisdiction and the

guardianship case will continue in Probate Court. If dependency

proceedings are initiated, the guardianship matter will be stayed

pursuant to section 304 of the Welfare and Institutions Code. Pro

bono attorneys are not expected to continue to represent the minor if

a dependency case is initiated.


42

PRACTICE TIP!

It is important to explain to your client that, unlike you the attorney,

the court investigator is a mandated reporter. A mandated reporter is

required to make a report to Child Protective Services (CPS) if he/she

knows or observes a child whom he/she knows or reasonably suspects

has been the victim of child abuse or neglect. Thus, unlike you the

attorney, the court investigator is not required to keep the client’s

information confidential, and in certain instances, may be required to

report some information to CPS. You can counsel your client to

answer the court investigator’s questions honestly, and assure the

client that any CPS report about past abuse or neglect will generally

not lead to any change in the child’s current living arrangement if the

child is now in a safe, stable environment.

d. Special issues in Santa Clara County

(1) Child residing with proposed guardian

In Santa Clara County, the court investigator will

generally not recommend a guardianship if the child is not

currently residing in the home of the proposed guardian.

The reason for this is that the Probate Court generally will

not issue orders that effectively remove a child from a

parent. This may be done only by CPS, after which

dependency proceedings must be initiated in Juvenile

Dependency court. An exception to this rule is if the child

wishes to live in the proposed guardian’s home but, due

to threats by the parent to remove him or her from the

proposed guardian’s care, is living in a shelter.

(2) Parent residing in proposed guardian’s home

In Santa Clara County, the court investigator will

generally not recommend a guardianship if the child’s

parent is also living in the proposed guardian’s home.

Although there is no law prohibiting such an

arrangement, it is Court Investigations’ position that, if


43

the parent is in the proposed guardian’s home, a

guardianship is not needed. In certain cases, a court

investigator may consider an exception to this position.

You should consult with your LACY mentor attorney if this

situation is implicated in your case.

4. Hearing

a. Time & Location

Probate guardianship hearings in Santa Clara County are currently set

on Tuesday mornings at 9:30 AM in Department 10. The courthouse is

located in downtown San Jose at 191 N. First Street San Jose, CA

95113.

b. Considerations of the Court

At the hearing, the court will first address whether the appropriate

parties and agencies have received proper notice of the proceedings,

and will ask the attorney about any deficiencies in notice.

Next, the court will consider whether there are any objections to the

guardianship. If notice is complete, the court investigator has

recommended that the guardianship be granted, and there are no

objections to the guardianship, the court will grant the guardianship.

The guardian will attend a short orientation following the morning

calendar, and will then be given the order and letters of guardianship

to file with the Probate Court clerk.

If there are objections to the guardianship, the court may ask

questions of the objecting party to understand the nature of their

objection. The court will generally refer the parties to a Family

Conference to determine whether any agreements can be reached (see

below).

If agreements cannot be reached, the court will generally set the

matter for an evidentiary hearing. An evidentiary hearing is generally

a half-day trial when the parties are able to present evidence to the

court and the judge makes a decision regarding the guardianship. If


44

your case is set for an evidentiary hearing, please consult with your

LACY mentor attorney for further guidance.

c. Family Conference

The Probate Court has a Family Court Services (FCS) social worker

who attends the Probate Court calendar. If the guardianship is

contested, the court often refers the parties to the social worker for a

“Family Conference.”

During the Family Conference, the FCS social worker will meet with the

parties and counsel to determine the parties’ positions and determine

if informal mediation may resolve the contention. If so, she may

attempt to facilitate a resolution on the day of the hearing. For

example, a parent may initially object to the guardianship, but after a

Family Conference, may agree to the guardianship with a stipulated

visitation agreement allowing the parent to have continued contact

with his/her child.

PRACTICE TIP!

Although a Family Conference is sometimes referred to as “mediation,”

the parties should understand that a Family Conference is not a

confidential meeting. The FCS social worker may report what occurred

at the Family Conference and provide recommendations to the court.

Parties and attorneys participate in the Family Conference. Minors

generally do not participate in the Family Conference, although the

FCS social worker may request to meet with the minor individually

prior to the Family Conference.

If the parties come to an agreement in the Family Conference, the FCS

social worker will state the terms of the agreement on the record

which the court will then order.

If an agreement cannot be reached, the court will set the matter for an

evidentiary hearing.


45

d. Emergency Screening

In very limited circumstances, the court may determine there is an

emergency and refer the parties and counsel to an emergency

screening. This tool is a limited assessment of the family looking only

to create temporary orders to address an emergency situation. The

court may order a screening if the court senses the child is currently at

risk of abuse or neglect or adversely impacted by the current situation.

The emergency screener will make recommendations after completing

the screening and the parties may opt to sign off on the

recommendations or request a hearing. If your case is referred to an

emergency screening, please contact your LACY mentor attorney right

away.

e. Custody Evaluation

If the court determines that an in-depth assessment of the family is

necessary, the court may refer the parties for a custody evaluation

performed by Family Court Services. In LACY’s experience, due to the

lack of current court resources, the court rarely orders custody

evaluations. The parties or counsel may request the court to order a

custody evaluation conducted by a private evaluator at the parties’

expense.

The evaluator will interview all parties and conduct an in-depth

investigation. The evaluator may also conduct observations of the

child interacting with the respective parties. The evaluation may take

up to 60 days to complete and will include the evaluator’s

recommendations regarding the long-term custody needs of the child,

and the rationale behind the recommendations. All parties have 20

days to object to the recommendations upon receipt. If no objections

are filed, the recommendations will be forwarded to the judge for

signature and will become court order. If your case is referred to a

custody evaluation, please consult with your LACY mentor attorney for

further guidance.


46

5. Post-Hearing

a. Status Review Hearing

In some cases, the court will order a status review hearing, generally

set 3 to 6 months from the date the guardianship is granted. Status

review hearings are set when current circumstances warrant granting

a guardianship, but the court would like an update on particular issues.

For example, the court may want to know how the child is adjusting in

the guardian’s care (particularly in cases where the circumstances

leading up to the guardianship were emotionally difficult for the child),

whether the guardian has sufficiently addressed any outstanding

issues raised in the court investigator’s report, and whether there have

been changes in the parent(s)’s circumstances. Status reviews may

also be set when an objecting parent ultimately agrees to the

guardianship with stipulated visitation, and the court would like an

update later as to how that visitation is going and whether any

modifications need to be made.

b. Visitation with Parents or Relatives

A parent or relative may not wish to terminate a guardianship, but

may want visitation with the child. Absent court orders, visitation with

the child is in the guardian’s discretion. Parents and relatives are

commonly able to reach agreements with the guardian regarding

visitation without court involvement.

If the parent or relative cannot reach an agreement with the guardian

regarding visitation, they can file a Petition for Visitation with the

court. Petitions for Visitation are calendared for hearing within 3

weeks of the date of filing. The parent is required to provide Notice of

the Hearing and a copy of the Petition to the guardian at least 5 days

before the hearing.

The court will grant reasonable visitation rights to a parent or relative

unless it is shown that visitation is detrimental to the best interest of

the child. (Fam. Code § 3100.) Generally, the court favors the child

maintaining a relationship with the parent through visitation.


47

If a parent or relative in your case is seeking visitation with the child,

please consult with your LACY mentor attorney for further guidance.

(1) Supervised Visitation

If there are concerns regarding alcohol or substance abuse,

physical abuse, emotional abuse, the visiting party’s mental

health, the child’s emotional well-being, the length of time that

has passed since the child has seen the visiting party, or other

similar concerns, the court may order supervised visitation with

the parent.

Supervised visitation may be done by a professional or a

nonprofessional (unpaid) provider. Supervisors must be able to

see and hear all interactions between the visiting party and the

child. The supervisor should be someone who can remain

neutral and who can keep the child safe during the visit.

Professional or nonprofessional providers may interrupt or end a

visit if the parent does not follow the rules of the visit, if the

child’s or provider’s safety is at risk, or if the child becomes very

distressed.

Supervised visitation providers are required to follow the

Uniform Standards of Practice for Providers of Supervised

Visitation, found at

http://www.courts.ca.gov/cms/rules/index.cfm?title=standards&

linkid=standard5_20. A guide for nonprofessional providers of

supervised visitation can be found at

http://www.courts.ca.gov/documents/NonProfGuide2005.pdf.

If there are serious concerns regarding the child’s emotional

well-being or the parent’s ability to have a positive visit with the

child, the court may order therapeutically supervised visitation.

Unlike a professional or nonprofessional supervisor, a

therapeutically supervised visitation provider will actively

participate in the visit by facilitating interactions between the

visiting party and the child. The provider will generally be a

licensed clinician. Sometimes, the court may order

therapeutically supervised visitation before supervised visitation

can begin.

http://www.courts.ca.gov/cms/rules/index.cfm?title=standards&linkid=standard5_20

http://www.courts.ca.gov/cms/rules/index.cfm?title=standards&linkid=standard5_20

http://www.courts.ca.gov/documents/NonProfGuide2005.pdf


48

PRACTICE TIP!

Professionally supervised visitation can be very costly. Most

professional providers require an intake or registration fee and charge

an hourly fee of around $50/hour. Currently in Santa Clara County,

there are two agencies that provide on-site supervised visitation at low

or no cost through First 5 funding—Catholic Charities of Santa Clara

County and Chamberlain’s Mental Health Services (in Gilroy). There

must be a child 5 years of age or under in the household of one of the

parties in the guardianship case in order for the court to order First

Five funding for supervised visitation. You should consult with your

LACY mentor attorney if you need more information regarding

supervised visitation and First 5 funding.

A list of professional supervised visitation providers can be found at:

http://www.scscourt.org/documents/fcs_docs/SVP_SCCounty.pdf.

c. Termination of Guardianship

A guardianship of the person automatically terminates when the minor

reaches the age of 18, is adopted, is emancipated, or dies. (Prob.

Code § 1600.) The guardian, a parent, the child, or the Indian

custodian or the child’s tribe (in ICWA cases) can petition the court to

terminate a guardianship. (Prob. Code. § 1601.) In Santa Clara

County, a court investigator will conduct an investigation when a

termination petition is filed. The investigator will make a report and

recommendation to the court. The court can terminate a guardianship

if it determines that termination is in the child’s best interest. (Prob.

Code § 1601; Cal. Rule of Court 7.1004.)

The court gives considerable weight to the amount of time that a child

has been in a stable guardianship and the bond that has developed

between the child and the guardian caregiver. Thus, even if a parent

is able to show that their circumstances have improved and they are

now capable of caring for the child, the court may still find that the

guardianship remains in the child’s best interest.

http://www.scscourt.org/documents/fcs_docs/SVP_SCCounty.pdf


49

If the parties agree that the guardianship should be terminated and

the child should return to his or her parent, and the court investigator

also recommends termination, then generally the court will terminate

the guardianship.

If a minor over twelve wishes to live with his or her parent, he or she

can petition to terminate the guardianship, even if the guardian is not

in agreement.

(1) Visitation with former guardian

The California Legislature recognizes that “guardians

perform a critical and important role in the lives of

minors, frequently assuming a parental role and caring

for a child when the child’s parent or parents are unable

or unwilling to do so.” (Prob. Code § 1602(a).) For that

reason, when a guardianship is terminated, the court can

consider whether continued visitation between the minor

and the former guardian is in the minor’s best interest.

The court has jurisdiction to issue an order providing for

ongoing visitation after the termination of the

guardianship. (Prob. Code § 1602(b).) After that, the

Probate Court’s jurisdiction over the guardianship ends.

A copy of the visitation order must be filed in the court

proceeding related to custody of the minor (generally an

existing Family Court case between the parents). If there

is no such pending court proceeding, the visitation order

may be used as the sole basis for opening a file in the

court of the county in which the custodial parent resides.

(Prob. Code § 1602(c); Cal. Rule of Court 7.1008.) Such

visitation order may not be modified absent a showing of

a significant change of circumstances.

d. Successor Guardianship

When a guardian, for reasons such as declining health or financial

hardship, is unable to continue caring for the child and serving as

guardian, it may necessary for another adult to step into that role.

This may be an adult who has had some involvement in the child’s life


50

and may have helped the guardian in caregiving duties. However,

regardless of the level of involvement the other adult may have had in

the child’s life during the course of the guardianship, custody does not

automatically transfer from the guardian to the other adult. The adult

must petition the court to be appointed as a “successor” guardian of

the child and must serve the parents, relatives, and social service

agencies entitled to notice of the proceedings. (Prob. Code § 2670.)

The process in obtaining a successor guardianship remains exactly the

same, even though the child has been in a guardianship before.

e. Annual Status Report

To the extent resources are available, guardians are required to

annually complete a status report provided by the court, containing

information such as the guardian’s present address, the name and

birth date of the child under guardianship, the child’s school, where

the child is residing (if not with the guardian) and the contact

information of the persons with whom the child is residing, and why

the child was moved (if not with the guardian). (Prob. Code § 1513.2;

Cal. Rule of Court 7.1003.) In Santa Clara County, due to the lack of

resources, guardians are not currently required to complete an annual

status report.


51

V. SPECIAL IMMIGRANT

JUVENILE STATUS Special Immigrant Juvenile Status (SIJS) is a classification under

federal law that assists certain undocumented children in obtaining

lawful permanent residence in the United States. (8 U.S.C.

§1101(a)(27)(J)(2010).) Children in probate guardianship

proceedings may be eligible for this particular relief.

A Special Immigrant Juvenile is an unmarried person under the age of

twenty-one who is in the United States; who has been declared

dependent on a juvenile court or whom a juvenile court has legally

committed to, or placed in the custody of, an agency or department of

a State or of an individual or entity appointed by a State or juvenile

court; and whose reunification with one or both parents is not viable

due to abuse, neglect, abandonment or a similar basis found in state

law.

In order to apply to Citizenship and Immigration Services (CIS) for

SIJS, a superior court must make factual findings that the child is a

“dependent” as defined in the federal statute, that reunification with

one or both parents is not viable, and that it is not in the child’s best

interest to return to his or her country of nationality.

The Probate Court has jurisdiction to make judicial determinations

regarding the custody and care of children within the meaning of the

federal statute, and can make the findings necessary to enable a child

to petition to the CIS for classification as a Special Immigrant Juvenile.

(Cal. Code of Civ. Proc. § 155.)

For more detailed information regarding SIJS in Probate Court, please

see LACY’s “Special Immigrant Juvenile Status in Probate Court” guide.


52

VI. STEP-BY-STEP

INSTRUCTIONS If your case does not require a temporary guardianship, you can start

with Section A. If your case requires a noticed temporary

guardianship, please begin with Section B. If your case requires an ex

parte temporary guardianship, please begin with Section C.

A. Instructions for General Guardianship

1. Step One: Review the LACY Referral Packet

After you have accepted a referral for a guardianship case from LACY,

you will receive a follow-up referral packet via email which will include:

Case Information, Guardianship Questionnaire (completed by the

proposed guardian or minor), Pro Bono Guidelines, and a Home Visit

Assessment (completed by a LACY social worker). The email will also

contain the contact information of your LACY mentor attorney.

You should review the materials in the referral packet to get a better

understanding of the facts of your case. Reviewing the materials will

also help you spot any missing information that you may need to ask

the prospective client. Please contact your LACY mentor attorney to

discuss a strategy for getting started on your case.

You may also want to review the portions of this manual pertaining to

guardianship law and procedure to refresh your memory before you

begin work on the case.

2. Step Two: Meet With Your Prospective Client

The Pro Bono Manager will send the prospective client a letter

providing the pro bono attorney’s name and phone number. The letter

will instruct the prospective client to call you within 10 days. If you do


53

not hear from the prospective client, you may contact him/her directly

to set up a meeting or contact your LACY mentor attorney.

During the first meeting, you can decide whether you will accept the

case, have the client sign any representation agreements, gather any

missing or supplemental information from the client (information that

has not been properly completed in the Guardianship Questionnaire,

including whereabouts of relatives and Native American ancestry), and

build rapport with the client. You can also determine whether the

situation warrants a temporary guardianship.

This is a good time to explain to the client what the benefits and

potential drawbacks of a guardianship are in their particular situation.

Talk with your client about their goals and what they hope obtaining a

guardianship will achieve. You should tell your client what information

the court papers will contain and who will be receiving a copy of the

papers. You should ask how they think the minor’s parents will

respond when they receive this information. You should also explain

the basic timeline of a guardianship proceeding and give them

information about the court investigation. You should also talk through

whether the client’s goals can be achieved without a formal

guardianship. Having all this information will help the client make an

informed decision about whether they would still like to proceed with a

guardianship petition or whether they would like to consider other

informal care arrangements.

PRACTICE TIP!

Pre-filing counseling is a very important piece of your job as a pro

bono attorney in a guardianship matter. It is possible that after

meeting with you and thoroughly weighing the pros and cons of

petitioning for a guardianship, the client will decide not to proceed

– not to worry! This means you did an effective job at advising

your client about the benefits and drawbacks of filing a

guardianship action. Please consult with your LACY mentor

attorney if you would like to discuss the pre-filing counseling

aspect of representation further.


54

This is likely the first time that the client has met with a lawyer, so you

should take some time to explain concepts like client confidentiality

and the attorney-client privilege in simple terms to the client.

If the prospective client is the minor-petitioner (over age 12), you

should meet with the minor privately before bringing the proposed

guardian into the meeting. You should also explain to the proposed

guardian that you are the minor’s attorney, and that you can share

information the minor has provided to you only if you have the minor’s

permission to do so.

If you accept the case, let the client know that you will contact

him/her after you complete the required papers to schedule a time for

the client to review and sign the papers.

After the meeting with the prospective client, you should inform the

Pro Bono Manager of your decision regarding case acceptance.

3. Step Three: Call the Probate Court Calendaring

Department

If you know approximately which day (or week) you will be ready to

file the guardianship papers, you can call the Probate Court

Calendaring Department at (408) 882-2649 and tell the calendar clerk

that you will be filing a petition for general guardianship and you are

requesting a case number and a hearing date for the general

guardianship (if you are requesting a noticed temporary guardianship,

you should also ask for a hearing date for the temporary

guardianship).

The calendar clerk will ask you about when you anticipate filing the

guardianship papers, and will accordingly give a hearing date for the

general guardianship (and a hearing date for temporary guardianship

if applicable). The clerk will give you a hearing date about 10 weeks

from the date you anticipate filing the guardianship papers. The

calendar clerk will also ask you for the minor’s full name and birth

date.


55

If you are not sure when you will be prepared to file the guardianship

papers, you can call the calendar clerk after you have completed the

papers. In that case, you will simply have to fill in the case number on

all the completed guardianship forms afterwards.

4. Step Four: Complete the Required Forms

Please refer to the Checklist in Appendix A for a complete list of the

required forms. Specific item numbers and instructions are provided

here where the information required on the form is not immediately

obvious. Please note that these are not the only items on the forms

which need to be completed. Items which deal solely with

conservatorships and guardianships of the estate need not be

completed.

You may want to refer to the information sheet on Waiver of Court Fees

and Costs (FW-001-INFO) to help you determine whether the client is

eligible for a fee waiver. Pro bono clients are generally eligible.

a. Application for Waiver of Court Fees and Costs (FW-

001)

Item 1: Complete with the client’s information.

Item 2: Complete with the client’s employment information. For a minor-petitioner without income, state “N/A full-time

student.”

Item 4: Check the box next to “Superior Court.”

Item 5a: Check any public assistance that the client is receiving.

If you checked any boxes in item 5a, skip Items 5b and 5c. If you checked any boxes in item 5a, the Order on

Application for Waiver of Court Fees and Costs (FW-003) can be signed by the court clerk, and does not need to go to the judge for signature.

Item 5b: Check this box if the client’s gross monthly household income (before taxes) is less than the amount shown

on the chart based on family size. If the client is the minor-petitioner, the household income includes the


56

proposed guardian’s income. If 5b is checked, fill out items 7, 8, and 9 only on the second page of the form.

You do not need to fill out items 10 or 11.

Item 5c: Check this box if the client does not meet the criteria in

Items 5a or 5b but nonetheless cannot pay the court fees. Complete the entire second page of the form. You can include an attachment if you would like the

court to know about any unusual expenses or circumstances impacting the client’s ability to pay the

court fees.

b. Application for Waiver of Additional Court Fees and

Costs (FW-002)

Item 1: Complete with client’s information.

Item 5: Check box 5(f) and type “Court investigator’s fees”

Item 6: State “A court investigation is required for probate guardianships.”

c. Order on Application for Waiver of Court Fees and

Costs (FW-003)

Item 1-3: Prefill these items.

Item 4: Check both boxes next to “Request to Waive Court Fees” and “Request to Waive Additional Court Fees.”

Check the boxes next to Item 4(a)(1) “Fee Waiver” and 4(a)(2) “Additional Fee Waiver.” In Item 4(a)(2) type

“Court investigator’s fees.”

Make sure that the clerk or the judge checks the box

next to Item 4(a) stating that the request is actually granted.

d. Notice of Hearing on Guardianship (GC-020)

Item 1: State “Petition for Guardianship of the Person” as

the document being filed.


57

Item 4: If the calendar clerk has given you a hearing date,

you can fill this information in. Guardianship

hearings in Santa Clara County are heard Tuesdays

at 9:30 AM in Department 10.

e. Petition for Appointment of Guardian of Minor (GC-

210(P))

Item 1: If you represent the proposed guardian, insert

his/her name in 1. If there are two proposed guardians, insert both names. If you represent

the minor-petitioner, insert the minor’s name in 1.

Item 5: Identify the relationship between the minor and

proposed guardian. If the proposed guardian is not related to the child, check Box 5b and proceed

to Item 6.

Item 6: Only check Box 6a if the proposed guardian runs a licensed foster family home. Check Box 6b if

you represent the proposed guardian. Check Box 6c if you represent the minor-petitioner, and

attach a separate sheet of paper titled “Form GC-210(P) – Attachment 6” with a signed statement from the proposed guardian(s) stating “I, [insert

name of proposed guardian(s)] agree to promptly furnish any information requested by an agency

investigating an adoption or a local agency designated by the county to provide public social

services.”

Item 7: Ask the client if the parent ever nominated anyone other than the proposed guardian.

Item 8: Fill in the requested information for each child. If there are more than five children, attach a

separate sheet of paper titled “Form GC-210(P) – Attachment 8: Additional Children.”

Item 9: Type “Please see Form GC-210(P) – Attachment

9: Need for Guardian.” Check the box below indicating you need more space. Attachment 9

is the petitioner’s declaration describing why a guardianship is necessary, convenient, and


58

in the child’s best interest. Attachment 9 can describe the relationship between the child and

the proposed guardian, how the proposed guardian has provided care for the child, and why

it is best that the child continue to be cared for by the proposed guardian.

If you need to include allegations about why

parental custody would be detrimental, you should do so in a separate confidential

Declaration, and file it confidentially using the PB-4003-2a cover sheet. On Form PB-4003-2a, you can check the “Other” box and put “Family Code

section 3041(a)” in the space given.

Please consult with your LACY mentor attorney if

you have questions regarding Attachment 9 and/or if you would like your LACY mentor attorney to review a draft of your Attachment 9

and give you feedback.

Item 10b: Check this box if there are relatives who you

know cannot be given notice (for example, a deceased grandparent or relative with unknown

address). State the name and relationship of the relative to the child and the reasons they cannot be given notice, including any steps taken to

locate them. If there are relatives who cannot presently be given notice but whose addresses

you think you may be able to locate, indicate that here. If you do not later find their addresses, file a declaration stating all efforts to do so. If you

need more space, check the box and attach Attachment 10b.

Item 11: Check boxes for all forms you will be submitting with the petition. Also check the “Other” box and type “Declaration under UCCJEA (FL-105/GC-

120)” and “Duties of Guardian (GC-248).”

Item 12: Count up the number of pages of attachments

plus the GC-210(CA) (5 pages plus any attachments to GC-210(CA)). The forms checked in line 11 do not count. You can also fill in Item

12 by hand later, as the number of total pages


59

often changes after your client has reviewed the declaration you have drafted for them.

f. Child Information Attachment (GC-210(CA))

Complete one GC-210(CA) for each minor subject to the

guardianship.

Item 1c: Check “Yes” in Box 1c(1) if you know the child is a member of or eligible for membership in one or more

federally-recognized Indian tribes, and “Yes” in Box 1c(2) if you have reason to know the child is or may be of Native American ancestry. If you have checked

“Yes” in Box 1c(1) and/or Box1c(2), you must complete Item 8. The tribe must be noticed, under the Indian

Child Welfare Act (ICWA). 25 U.S.C. § 1901 et seq. If you believe ICWA is implicated in your case, consult with your LACY mentor attorney regarding ICWA

procedure.

Item 1f: If there have not been any custody proceedings, insert

name and address of parents as individuals with legal custody.

Item 1g: Complete this line with the name and address of the

proposed guardian, if the minor lives with him or her.

Item 1h: Complete as much information as you know about any

previous custody proceedings.

Item 2: List the full names and addresses of all required relatives (parents, maternal grandparents, paternal

grandparents, siblings, and half-siblings). If there is not enough room to list all siblings, include an attachment

with the remaining names and addresses.

Item 4: State “Please see Form GC-210(P) – Attachment 9: Need for Guardian.”

Item 7: If the minor is the petitioner, check “Relative” and state “The child is the minor-petitioner.”


60

Item 8c: If you have asked the minor and the proposed guardian (and any other relatives you or the client has

spoken to) about Native American ancestry, and the child has no known Native American ancestry, check

8c(8) and attach “Attachment 8c(1): Indian Child Inquiry” with the information requested in 8c(1). In LACY’s experience, the attachment does not need to be

overly detailed particularly if the child has no Native American ancestry. If the child does have Native

American ancestry, fill out the information known in 8c(1) – (6).

g. Consent of Guardian, Nomination, and Waiver (GC-

211)

If the minor is the petitioner: Each proposed guardian must

sign the Consent (top section) and should sign the Consent and Waiver of Notice (bottom section) so that they do not need to be

served.

If the proposed guardian is the petitioner: Each proposed guardian must sign the Consent (top section). Each minor over

the age of twelve must sign the Consent and Waiver of Notice (bottom section).

If the parents are in agreement with the guardianship,

they can sign the Nomination of Guardian as well as the Consent and Waiver of Notice (middle and bottom sections). A separate Form GC-211 can be submitted for each parent.

h. Declaration under Uniform Child Custody Jurisdiction

Enforcement Act (UCCJEA) (FL-105/GC-120)

Item 3: Fill out where the child has lived in the last 5 years, to the best of your client’s knowledge. Use an attachment

if you need additional space.

Item 4: Fill out any court cases concerning the child subject to

the guardianship proceeding, to the best of your client’s knowledge. You can use the Public Access Case


61

Information Website located at http://www.sccaseinfo.org/, and try to search for any

cases involving the child or the child’s parents. Please note that the website will not display juvenile

dependency case information, and will not display family law case information if the child’s parents were not married.

Item 6: Provide each parent’s information and check the box stating “Claims custody rights.” If there are other

persons that you know claim custody or visitation rights over the child, provide that information.

i. Duties of Guardian (GC-248)

The proposed guardian should sign this form, even if the

petitioner is the minor. Give a copy of the form to the proposed

guardian.

j. Order Appointing Guardian of Minor (GC-240)

Have this form prepared so that the court may sign it at the

hearing. The order will be submitted when you file the

guardianship papers and kept in the court’s file until the hearing

on the general guardianship. You may submit an amended

order on the day of the hearing if there have been any changes

to the information on the order – for example, you were able to

locate the whereabouts of a relative that you initially thought

you would be unable to locate, and therefore the court does not

need to dispense with notice as to that relative.

k. Letters of Guardianship (GC-250)

Prepare the letters in advance, so that you can have the

proposed guardian(s) sign at the same time as the other forms.

All proposed guardians sign the same form. The letters will be

submitted when you file the guardianship papers and kept in the

court’s file, but will not be filed until after the guardianship is

granted.

l. Confidential Guardianship Screening Form (GC-212)

http://www.sccaseinfo.org/


62

Complete a form for each proposed guardian. This form is

confidential, which means that it does not become part of the

public file. The information provided will be viewed by the court

and the court investigator.

If the answer to any of the questions is “yes,” provide an

attachment explaining and/or containing the information

requested.

A “yes” answer is not necessarily a bar to guardianship.

However, the proposed guardian should know that much of this

information will show up in the court investigator’s background

check, so it is better to provide any information up front to

preserve credibility with the court. If you have concerns about a

proposed guardian’s background, please consult with your LACY

mentor attorney for guidance.

A confidential cover sheet should be placed on top of this form

(PB-4003-2a) when it is filed. On the cover sheet, check the box

next to “Cal. Rules of Court, Rule 7.1001: Confidential

Guardianship Screening Form.”

m. Referral for Investigator’s Report (Local Form PB-

4005)

The original of this form is submitted to the court investigator.

A copy is submitted to the court when you file the guardianship

papers, but it does not get filed and does not become part of

the public file. Since this form is not filed, a confidential cover

sheet is not necessary for this form.

n. Authorization to Release Information (Local Form PB-

4014)

The original of this form is also submitted to the court

investigator. A copy is submitted to the court when you file the

guardianship papers, but it does not get filed. Fill out the name

of the proposed guardian and have him/her sign this form.


63

5. Step Five: Meet with the Client to Review and Sign

the Guardianship Papers

Call your client to set up a meeting to review and sign the forms. Let

your client know that this meeting may take some time, as it

important to review the information submitted in the prepared forms

carefully. Refer to the table above to see which forms must be signed

by which person (proposed guardian, child, attorney, etc.).

When you meet with your client to review the papers, make sure your

client understands that the papers you have prepared are drafts, and

that it is important for your client to tell you when information is

inaccurate or incorrect so that you can make the necessary changes.

If there are particular relatives that the client believes will consent to

the guardianship and waive notice, you can provide Consent and

Waiver of Notice forms (GC-211) to the client to have the relatives

sign. Those forms can be filed later and do not need to be filed with

the initial guardianship paperwork.

Before your client leaves your office, double-check all the forms to

make sure they are complete and signed. You can use the Checklist in

Appendix A to help you do this. Let the client know when you plan to

file the papers with the court and that you will send a courtesy copy of

the filed papers to him/her in the mail. If the calendar clerk has

already provided you with a hearing date(s), let the client know those

dates. If you do not yet have a hearing date(s), tell your client that

you will update him/her with the hearing date(s). Finally, ask your

client to let you know when the court investigator contacts him/her

and conducts a home visit.

6. Step Six: Prepare the Papers for Filing

a. Prepare the Originals and Two Copies

Two-hole punch the original set of papers. The Probate Court in Santa

Clara County now scans all original documents electronically, so do not

staple any of the originals. The original set of papers, except the


64

Referral for Investigator’s Report (PB-4005) and Authorization for

Release of Information (PB-4014), will be filed with the court.

Make two copies of the entire set of papers. The first set of copies will

be for the court investigator. The second set of copies will be for your

records. You can staple the documents in the sets of copies for you

and the court investigator. The original Referral for Investigator’s

Report (PB-4005) and Authorization for Release of Information (PB-

4014) should be included in the set of papers going to the court

investigator.

b. Compile the Originals and Two Copies

Compile the original and copies in the following order:

(1) Originals

Fee Waiver Documents (FW-001, FW-002, and FW-

003)

Notice of Hearing (GC-020)

Petition for Appointment of Guardian & all attachments

(GC-210(P), GC-210(CA), attachments)

Declaration Under UCCJEA (GC-120)

Consent of Guardian, Nomination, and Waiver of

Notice (GC-211)

Duties of Guardian (GC-248)

Confidential Guardian Screening Form (GC-212 with

PB-4003-2a on top)

Order Appointing Guardian (GC-240)

Letters of Guardianship (GC-250)

Copy of Referral for Investigator’s Report (PB-4005)

Copy of Authorization for Release of Information (PB-

4014)

(2) First Set of Copies (for Court Investigator)

Copies of above documents (except last 2)

Original Referral for Investigator’s Report (PB-4005)

Original Authorization for Release of Information (PB-

4014)

(3) Second Set of Copies (for You)


65

Same as Originals

7. Step Seven: File the Petition

a. Meet with Probate Examiner

If the child is not receiving any public assistance listed in Item 5a of

the fee waiver request (FW-001) and/or you are requesting a

temporary guardianship in addition to a general guardianship, call the

Probate Court Examiner Department at (408) 882-2668 and ask to

speak with the Probate Examiner staff attorney.

Let the staff attorney know that you are filing a petition for

guardianship (and petition for temporary guardianship if applicable)

and/or you also need the court to review your fee waiver request if the

child is not receiving public assistance. Schedule a time to meet with

the staff attorney to review your papers and the fee waiver request.

When you arrive at the courthouse to meet with the staff attorney, go

to the Probate Clerk’s office located on the first floor. Use the

telephone in the clerk’s office to dial #2668 and let the staff know that

you have a meeting with the Probate Examiner staff attorney.

The staff attorney will review your papers and will point out any

deficiencies for you to correct. The staff attorney may also rearrange

your papers in a way that is easiest for the clerk to process for filing.

He will also route your fee waiver request to the judge if applicable.

Generally, the Probate Examiner staff attorney will have you come in

at a time when he knows the judge is available to sign the Order on

Court Fee Waiver (FW-003). If the judge signs the Order on Court Fee

Waiver that day, the staff attorney will direct you to file the

guardianship papers. If the judge is not available, the staff attorney or

the Probate Court clerk’s office will hold onto your guardianship papers

and will call you to let you know when the Order on Court Fee Waiver

has been signed, so that you can return to court to file the

guardianship papers.


66

If the child is receiving public assistance listed in Item 5a of the fee

waiver request (FW-001) AND you are not requesting a temporary

guardianship, you can go directly to the next step without meeting

with the Probate Examiner staff attorney.

b. File the Guardianship Papers with the Clerk

File your guardianship papers in the Probate Clerk’s office. The clerk

will take all of your originals and will stamp the court investigator’s set

of copies and your set of copies with an endorsed-filed stamp. The

clerk will forward the court investigator’s set of copies to the court

investigator, and will return your set of copies to you.

You should make a copy of your set of the papers and send the copy

to your client in the mail.

8. Step Eight: Serve the Papers

The Notice of Hearing (GC-020) and the Petition for Appointment of

Guardian of the Person (GC-210(P) with attachments & any

confidential declarations) must be served at least 15 days before the

hearing on the general guardianship (additional days if mailed). The

person serving must be over 18 years old and cannot be a party in the

case (in other words, neither the child nor the proposed guardian can

serve the papers). Please refer to Appendix A for a checklist of the

persons who must be served and the method of service required.

a. Personal Service

Parents, the minor (if 12 or older and not the petitioner), and any

person with legal custody of the minor (if other than parents) must be

personally served with the guardianship papers. Generally, if the minor

is 12 or older and not the petitioner, you or your client will have

already obtained a Consent and Waiver and Notice from him/her.

If there is sufficient time to allow for the parents to receive and return

the Notice and Acknowledgement of Receipt (POS-015) or Consent and

Waiver of Service (GC-211) as substitutes for personal service, you


67

may choose to mail the guardianship papers to the parents with those

2 forms.

Your cover letter to the parent should state that if the parent agrees to

the guardianship, he or she should return to you the signed Consent

and Waiver of Service form, and if they do not agree or are not sure,

they should sign and return the Notice and Acknowledgement of

Receipt. Include a self-addressed, stamped envelope to make this

convenient for the parents to do.

You should only use the option of sending the documents via mail to

the parents if you expect the parents to be cooperative and return

either the Notice and Acknowledgement of Receipt or the Consent and

Waiver of Service.

An example of a cover letter to parents can be found at Appendix C.

If you know the parents will not be cooperative or there is insufficient

time for the parents to return the Notice and Acknowledgement or the

Consent and Waiver of Notice, arrange for the parents to be personally

served with the required documents. Have the person who personally

serves the parent complete the Proof of Personal Service (GC-020(P))

which you will file later.

b. Serve Other Parties by Mail

Mail copies of the documents to grandparents, siblings, and the

proposed guardian (if they are not the petitioner). An example of a

cover letter can be found at Appendix C.

c. Serve Social Services Agencies by Mail

Mail copies of the appropriate documents on Emergency Response

Services (all guardianships), the Department of Family and Children’s

Services (for non-relative guardianships only) and California

Department of Social Services (for non-relative guardianships only). If

you neglect to serve these agencies, the guardianship will be

continued until service is complete. An example of a cover letter to a

social services agency can be found at Appendix C. The addresses for

these agencies are:


68

Program Manager

Emergency Response Services

Santa Clara County Social Services Agency 333 W. Julian Street San Jose, California 95110

Social Services Agency

Department of Family and Children's Services 333 W. Julian Street San Jose, California 95110

The California Department of Social Services

744 P Street Sacramento, California 95814

9. Step Nine: Prepare for the Hearing

a. Check in with the Court Investigator

After the court investigator has spoken to your client and conducted a

home visit, it is a good idea to call the court investigator and ask if

there is any additional information he/she needs from you. You can

call the Court Investigations unit at (408) 882-2761. You may be

asked to provide the case number and/or the child’s name.

About a week before the hearing, if you have not received a copy of

the court investigator’s report, call the court investigator and request

that a copy be faxed to you when it is complete.

b. File Proofs of Service and Consent/Waivers of Notice

Prepare proofs of service for the parties personally served (GC-020(P))

and the parties served by mail (page 2 of GC-020). Have the

person(s) who served the parents or mailed the documents sign the

appropriate proofs of service. Make a copy of the 1st page of the

Notice of Hearing (GC-020) and attach the proof of service as the

second page. Make a copy of both pages for you. File the original

proofs of service with the court and have the clerk stamp your copy


69

with an endorsed-filed stamp prior to the hearing date. The clerk will

stamp the 2nd page of the document containing the proof of service.

If your client has obtained any Consent and Waiver of Notice forms

(GC-211) from any person entitled to notice, you should make a copy

of such forms. File the original with the court and have the clerk stamp

your copy with an endorsed-filed stamp.

c. Prepare and File Any Requests to Dispense with Notice

If there are any parties that, despite reasonably diligent efforts, you

have been unable to locate and serve, prepare a Request to Dispense

with Notice and a supporting declaration as to those parties, detailing

the attempts that have been made to locate the person and justifying

why notice should be waived. Make a copy of the signed Request to

Dispense with Notice and supporting declaration. File the original with

the court and have the clerk stamp your copy with an endorsed-filed

stamp.

d. Prepare Client for Hearing

Call your client to remind him/her about the date, time, and location of

the hearing. Ask your client to arrive early so that you have plenty of

time to check in with the clerk. You may want to arrange to meet with

your client outside of the courthouse especially if this is their first time

at court.

If your client and/or the proposed guardian(s) require an interpreter

for the hearing, request a court interpreter with the Department 10

court clerk at (408) 882-2210 well in advance.

e. Make Copies of the Order and Letters of Guardianship

Bring extra copies of the Order and Letters of Guardianship to the

hearing. If the guardianship is granted, you can provide the extra

copies of the Order and Letters of Guardianship for the clerk to stamp

with an endorsed-filed stamp, for you to provide to your client and

keep one copy for yourself.

10. Step Ten: The Hearing


70

a. Check In with the Court Clerk

When you get to the courthouse, meet your client and go to

Department 10 which is located on the 4th floor. Check the paper

calendar posted outside the courtroom to see what line number your

case is. Go inside the courtroom and check in with the court clerk.

Give her your line number and let her know that you and your client

(and any other parties you know) are present. You can then sit with

your client in the audience and wait for the judge to call your case.

b. Make Your Appearance

Generally, the judge calls the cases in the order they appear on the

calendar, unless there is an urgent reason that a case needs to be

called out of order (for example, if a parent is in custody and has been

transported to the hearing)

When your case is called, approach the tables with your client and

state your appearance. The judge will first address whether notice has

been properly given and address any requests to dispense with notice.

The judge will then inquire whether there is any objection to the

proposed guardianship. If there is no objection and service is

complete, the judge will sign the guardianship order and ask the

guardian to attend an orientation at the end of the calendar.

If a parent or any other party appears to oppose the guardianship, the

judge may ask them questions to understand the nature of their

objection. The judge may then refer the matter for a Family

Conference to see if any agreements can be reached.

c. Have Client Attend Guardianship Orientation

If the guardianship is granted, the guardian will be asked to stay after

the calendar for a guardianship orientation—a brief presentation on the

rights and responsibilities of guardians given by the Probate Court

Investigators Unit.

d. File the Order and Letters of Guardianship

Upon completion of the orientation, the guardian will receive the

signed Order and Letters of Guardianship to file with the Probate Court


71

clerk. Accompany your client to the first floor to file the original Order

and Letters of Guardianship with the Probate Court clerk and have the

clerk stamp your copies with an endorsed-filed stamp. Provide copies

of the Order and Letters of Guardianship to your client and keep one

copy for yourself.

The Letters of Guardianship are legal proof that a guardianship is in

place, so the guardian should leave with at least 3 certified copies of

the Letters. Ask the clerk for 3 certified copies of the Letters of

Guardianship and let the clerk know that there is a fee waiver on file

(so that the certified copies will be issued free of charge). If there is no

fee waiver on file, there is a charge for each certified copy that is

requested.

If more certified copies are required at a later time, the guardian can

always come back to the Probate Court clerk to request additional

certified copies. You should advise the guardians that he/she should

only give certified copies of the Letters of Guardianship if certified

copies are specifically requested. Otherwise, the guardians can simply

give out regular photocopies of his/her endorsed-filed Order and

Letters of Guardianship.

e. File a Substitution of Attorney Form

If there are no further legal issues pending in the guardianship case,

you can substitute out of the case. Sign and have your client sign a

Substitution of Attorney form (MC-050). Mail a copy of the signed

form to any other party that appeared in the case (if any) and the

child (if over 12 years of age) and complete the proof of service on the

2nd page of the form. File the form with the court and send a copy to

your client with a closing letter. Let the Law Foundation Pro Bono

Manager know by email or letter that the case is complete.


72

B. Instructions for Noticed Temporary Guardianship

1. Step One: Prepare Petition for General

Guardianship

Follow steps 1 through 4 under "Instructions for General

Guardianship." As noted above, when you call the calendar clerk, you

should request a hearing date for the temporary guardianship in

addition to a hearing date for the general guardianship.

2. Step Two: Complete Additional Forms and

Attachments for Temporary Guardianship


forms you must complete for a noticed temporary guardianship (in

addition to the forms for a general guardianship). Specific item numbers

and instructions are provided here where the information required on the

form is not immediately obvious. Please note that these are not the only

items on the forms which need to be completed.

a. Notice of Hearing (GC-020)

Caption: Type “Temporary” above the word “Guardianship” in the caption box that says “Notice of Hearing – Guardianship or Conservatorship.”

Item 1: State “Petition for Temporary Guardianship of the

Person” as the document being filed.

Item 4: If the calendar clerk has given you a temporary

guardianship hearing date, you can fill this information

in. Guardianship hearings are heard Tuesdays at 9:30

AM in Department 10.


73

b. Petition for Appointment of Temporary Guardian (GC-

110(P))


his/her name in 1. If there are two proposed

guardians, insert both names. If you

represent the minor-petitioner, insert the

minor’s name in 1.

Item 5: Identify the relationship between the minor

and proposed guardian.

Item 6: Fill in the requested information for each child.

If there are more than two children, attach a

separate sheet of paper titled “Form GC-

110(P) – Attachment 6: Additional Children.”

Item 7: In the space given, provide a brief, 3 to 4

sentence explanation of why a temporary

guardianship is necessary. Then type, “Please

see Form GC-110(P) – Item 7: Reasons for

Appointment of Temporary Guardian.” Check

the box below indicating you need more

space. The attachment is the petitioner’s

declaration, giving additional detail regarding

why a temporary guardianship is necessary

and also providing some information regarding

the general guardianship. You can consult with

your LACY mentor attorney if needed

regarding this attachment.


parental custody would be detrimental, you

should do so in a separate confidential

Declaration, and file it confidentially using the

PB-4003-2a cover sheet. On Form PB-4003-2a,

you can check the “Other” box and put “Family

Code section 3041(a)” in the space given.


74

Item 8: Mark the appropriate box. It is not

recommended that minors under 12 attend

the hearing. For minors over 12, the minor

has a choice whether to attend or not.

Sometimes, especially if the guardianship is

uncontested, it makes more sense for the

minor not to miss school. Other times, it may

be important to the minor to attend the

hearing on his or her petition.

Item 10: Count up the number of pages of

attachments. You can also fill in Item 10 by

hand later, as the number of total pages often

changes after your client has reviewed the

declaration you have drafted for them.

c. Order Appointing Temporary Guardian (GC-140)

Have this form prepared so that the court may sign it at the

hearing. The order will be submitted when you file the

guardianship papers and kept in the court’s file until the hearing

on the temporary guardianship. You may submit an amended

order on the day of the hearing if there have been any changes

to the information on the submitted order.

d. Letters of Temporary Guardianship (GC-150)


proposed guardian(s) sign at the same time as the other forms.

All proposed guardians sign the same form. The letters will be

submitted when you file the guardianship papers and kept in the

court’s file, but will not be filed until after the temporary

guardianship is granted.


75

3. Step Three: Meet with the Client to Review and

Sign the Temporary Guardianship Papers

Follow step 5 under "Instructions for General Guardianship.” The

papers pertaining to the temporary guardianship will be signed at the

same time as the papers pertaining to the general guardianship.

4. Step Four: Prepare the Papers for Filing




staple any of the originals. Make two copies of the entire set of papers.

The first set of copies will be for the court investigator. The second set

of copies will be for your records.


You can compile the original and copies of both the papers pertaining

to the temporary guardianship and to the general guardianship in the

following order:

(1) Originals


003)

Notice of Hearing (GC-020) on the temporary

guardianship

Notice of Hearing (GC-020) on the general

guardianship

Petition for Appointment of Temporary Guardian & all

attachments (GC-110(P) and attachments)





Notice (GC-211)



76


PB-4003-2a on top)

Order Appointing Temporary Guardian (GC-140)

Letters of Temporary Guardianship (GC-150)





4014)





4014)


Same as Originals

5. Step Five: File the Petitions


Follow step 7(a) under "Instructions for General Guardianship.” Specify

to the Probate Examiner that you are requesting a noticed temporary

guardianship.


Follow step 7(b) under “Instructions for General Guardianship.”

6. Step Six: Serve the Required Documents

The Notice of Hearing (GC-020) on the temporary guardianship and

the Petition for Appointment of Temporary Guardian of the Person

(GC-110(P) with attachments & any confidential declarations) must be

served 5 court days before the hearing on the temporary guardianship.

The person serving must be over 18 years old and cannot be a party in


77

the case (in other words, neither the child nor the proposed guardian

can serve the papers). Please refer to Appendix A for a checklist of the


Sample cover letters can also be found at Appendix C.

a. Serve Temporary Petition Papers with General

Guardianship Petition Papers

It makes sense to serve the parties only once, so we recommend

serving the documents on the general guardianship and the

documents on the temporary guardianship all at one time. (See Step 8

under “Instructions for General Guardianship.”)

b. Personal Service

Notice of Hearing on the temporary guardianship must be personally

served on the parents and the minor (if the minor is over twelve and

not the petitioner) and any person having custody or visitation rights

at least five days before the hearing.

If a temporary guardianship is sought, it is usually best to serve the

parents personally as soon as possible, and not attempt to have the

parent sign a Consent and Waiver of Notice or a Notice and

Acknowledgment and Receipt, as there usually is not enough time.

c. Serve Social Service Agencies by Mail

Although it is not statutorily required for the temporary guardianship,

in Santa Clara County, the Probate Court likes Emergency Response

Services (and Department of Family and Children’s Services and

California Department of Social Services, if the proposed guardian is a

non-relative) to be served prior to the temporary guardianship

hearing. You can serve the social services agencies by mail.


78

7. Step Seven: Prepare for the Temporary

Guardianship Hearing

a. Check in with the Court Investigator

The court investigator will conduct a short investigation regarding the

temporary guardianship. They will conduct a background check on the

proposed guardian and any adults living in the home. They may

conduct a phone interview with the proposed guardian, but generally

they will not conduct a home visit until their investigation on the

general guardianship. The court investigator will generally prepare a

short report on the temporary guardianship to report their findings to

the court.

You can call the Court Investigations unit at (408) 882-2761 about a

week prior to the hearing on the temporary guardianship to and ask if

there is any additional information he/she needs from you and to

request a copy of the report on the temporary guardianship.

b. File Proofs of Service and Consent/Waivers of Notice

Follow Step 9(b) under “Instructions for General Guardianship.”

c. Prepare and File Any Requests to Dispense with Notice

Follow Step 9(c) under “Instructions for General Guardianship.”

d. Prepare Client for Hearing

Follow Step 9(d) under “Instructions for General Guardianship.”

e. Make Copies of the Temporary Order and Letters of

Temporary Guardianship

Bring extra copies of the Order Appointing Temporary Guardian and

Letters of Temporary Guardianship to the hearing. If the temporary

guardianship is granted, you can provide the extra copies of the

Temporary Order and Letters of Temporary Guardianship for the clerk

to stamp with an endorsed-filed stamp, for you to provide to your

client and keep one copy for yourself.


79

8. Step Eight: The Temporary Guardianship Hearing

Follow Step 10 under “Instructions for General Guardianship.” Note

that the hearing on the temporary guardianship will focus on the need

for the child to have an adult that can provide temporary care and

support until the hearing on the general guardianship.

Any objecting party will get a chance to appear and state their

objections to the temporary and/or general guardianship. The court

may encourage the objecting party to file their objections in writing if

they have not already done so. The court may also refer the parties to

a Family Conference to discuss temporary visitation, and may issue

orders regarding temporary visitation if appropriate.

If the court grants the temporary guardianship, you can file the Order

Appointing Temporary Guardian and Letters of Temporary

Guardianship with the clerk and provide copies to the client (keep one

copy for yourself). There is no orientation for temporary guardians.

After the temporary guardianship hearing, you can follow the

remaining steps 9 and 10 in the “Instructions for General

Guardianship.”


80

C. Instructions for Ex Parte Temporary Guardianship

1. Step One: Prepare the Petition for General

Guardianship

Follow steps 1 through 4 under "Instructions for General

Guardianship." Note that if you are requesting an ex parte temporary

guardianship, you will not receive any hearing dates until the court

makes a decision on the ex parte temporary guardianship. If the ex

parte temporary guardianship is granted, then you will receive a

hearing date for the reconsideration hearing and a hearing date for the

general guardianship.

2. Step Two: Complete Additional Forms and

Attachments


forms you must complete for an ex parte temporary guardianship (in

addition to the forms for a general guardianship.) Specific item

numbers and instructions are provided here where the information

required on the form is not immediately obvious. Please note that these

are not the only items on the forms which need to be completed.

a. Notice of Hearing (GC-020)

Caption: Type “Temporary” above the word “Guardianship” in the caption box that says “Notice of Hearing –

Guardianship or Conservatorship.”

Item 1: State “Petition for Temporary Guardianship -

Reconsideration” as the document being filed.

Item 4: Leave the date for the reconsideration hearing blank.

You can fill in the time (9:30 AM) and the department

number (Department 10). The calendar clerk will fill in

(or will give you to fill in) the hearing date after the ex

parte temporary guardianship is granted.


81

b. Petition for Appointment of Temporary Guardian (GC-

110(P))


his/her name in 1. If there are two proposed

guardians, insert both names. If you

represent the minor-petitioner, insert the

minor’s name in 1.

Item 5: Identify the relationship between the minor

and proposed guardian.

Item 6: Fill in the requested information for each child.

If there are more than two children, attach a

separate sheet of paper titled “Form GC-

110(P) – Attachment 6: Additional Children.”

Item 7: In the space given, provide a brief, 3 to 4

sentence explanation of why a temporary

guardianship is necessary. Then type, “Please

see Form GC-110(P) – Item 7: Reasons for

Appointment of Temporary Guardian.” Check

the box below indicating you need more

space. The attachment is the petitioner’s

declaration, giving additional detail regarding

why a temporary guardianship is necessary

and also providing some information regarding

the general guardianship. You can consult with

your LACY mentor attorney if needed

regarding this attachment.


parental custody would be detrimental, you

should do so in a separate confidential

Declaration, and file it confidentially using the

PB-4003-2a cover sheet. On Form PB-4003-2a,

you can check the “Other” box and put “Family

Code section 3041(a)” in the space given.


82

Item 8: Mark the appropriate box. It is not

recommended that minors under 12 attend

the hearing. For minors over 12, the minor

has a choice whether to attend or not.

Sometimes, especially if the guardianship is

uncontested, it makes more sense for the

minor not to miss school. Other times, it may

be important to the minor to attend the

hearing on his or her petition.

Item 9: Check the box(es) to indicate that the parents

will not be served and explain the reasons

why the temporary guardianship should be

granted without notice to the parents. If you

need additional space, check the box

indicating so and attach Attachment 9.

Item 10: Count up the number of pages of





c. Ex Parte Application for Order Pending Hearing

If you are requesting an Order Pending Hearing (the interim order

while the court considers the petition for an ex parte temporary

guardianship), you should prepare an Ex Parte Application for Order

Pending Hearing. This is a short declaration that can be done on

regular pleading paper and signed by the attorney. The declaration

should explain why the child would be in immediate danger absent

temporary court orders keeping the child in proposed guardian’s care.

Generally, this will include information regarding the parent(s)

threatening to remove the child, and why this would be dangerous for

the child.

d. Order Appointing Temporary Guardian (GC-140)

Have this form prepared for the court to sign.


83

Item 1b: Type “EX PARTE” in the space after “Hearing

date:” Count up the number of pages of





Item 2b: Check the boxes to indicate that notice should

be dispensed with, and type the parents’

names in the space given.

e. Letters of Temporary Guardianship (GC-150)


proposed guardian sign at the same time as the other forms. All

proposed guardians sign the same form. Note that you will hold

onto the Letters of Temporary Guardianship and file them only

after the Order Appointing Temporary Guardian ex parte has

been signed.

3. Step Three: Meet with the Client to Review and

Sign the Temporary Guardianship Papers

Follow step 5 under "Instructions for General Guardianship.” The

papers pertaining to the ex parte temporary guardianship will be

signed at the same time as the papers pertaining to the general

guardianship.

4. Step Four: Prepare the Papers for Filing




staple any of the originals. Make two copies of the entire set of papers.

The first set of copies will be for the court investigator. The second set

of copies will be for your records.


84


You can compile the original and copies of both the papers pertaining

to the ex parte temporary guardianship and to the general

guardianship in the following order:

(1) Originals


003)

Petition for Appointment of Temporary Guardian & all

attachments (GC-110(P) and attachments)

Ex Parte Application for Order Pending Hearing





Notice (GC-211)



PB-4003-2a on top)



4014)





4014)


Same as Originals

(4) Other Documents - Originals and Two Copies

Ex Parte Order Appointing Temporary Guardian (GC-

140)


Notice of Hearing (GC-020) on reconsideration of the

temporary guardianship


85

Notice of Hearing (GC-020) on the general

guardianship



5. Step Five: File the Petitions


Follow step 7(a) under “Instructions for General Guardianship.” Specify

to the Probate Examiner that you are requesting an ex parte

temporary guardianship (and an Order Pending Hearing if applicable).


After the judge signs the Order Pending Hearing, the Probate Examiner

will have you file the guardianship papers. Follow step 7(b) under

“Instructions for General Guardianship.”

Please note that you will hold onto the papers listed in Step 4(b)(4) for

now. Those papers will be filed (or submitted to keep in the court’s

file) only after the court makes a decision on the ex parte temporary

guardianship.

Note down when the Order Pending Hearing is set to expire.

6. Step Six: Follow up with the Court Investigator

The court investigator will conduct a short investigation regarding the

ex parte temporary guardianship. They will conduct a background

check on the proposed guardian and any adults living in the home.

They may conduct a phone interview with the proposed guardian, but

generally they will not conduct a home visit until their investigation on

the general guardianship. The court investigator will generally prepare

a short report on the temporary guardianship to report their findings

to the court.


86

The court will then make a decision regarding the ex parte temporary

guardianship.

You should call the Court Investigations unit at (408) 882-2761 about

a week prior to the expiration date of your Order Pending Hearing (30

days). You can inform the investigator that the Order Pending Hearing

is set to expire soon, and that you would like to make sure the court

will have the investigator’s report on the temporary guardianship

before the Order expires.

7. Step Seven: File the Remaining Guardianship

Papers

If the judge grants the ex parte temporary guardianship, you will get a

call from the Probate Examiner to let you know that the Order

Appointing Temporary Guardian is ready to be picked up and filed.

Pick up the Order from the Probate Examiner and ask the calendar

clerk to give you 2 hearing dates –for the reconsideration hearing, and

for the general guardianship hearing. The calendar clerk may ask for

your Notices of Hearings and may mark the hearing dates on the

Notices for you, or may give you the 2 hearing dates and ask you to

note them down on the Notices.

After the 2 hearing dates have been noted on the two Notices of

Hearing, put the date of the general guardianship hearing on Item 9 of

the Order Appointing Temporary Guardian (GC-140) as the date the

temporary order will expire. Put the date of the general guardianship

hearing on Item 3(a) of the Letters of Temporary Guardianship (GC-

150) as the date the temporary letters will expire.

File the following documents with the Probate Court clerk, and get two

copies stamped endorsed-filed (for the court investigator and for you):

Order Appointing Temporary Guardian (GC-140)


Notice of Hearing (GC-020) on reconsideration of the temporary

guardianship

Notice of Hearing (GC-020) on the general guardianship


87

Order Appointing Guardian (GC-240) – not filed, submitted for

court’s file

Letters of Guardianship (GC-250) – not filed, submitted for

court’s file

In addition, get 3 certified copies of the Letters of Temporary

Guardianship for your client.

8. Step Eight: Inform Your Client

Call your client to let them know that the ex parte temporary

guardianship was granted and provide the client with the date/times of

the reconsideration hearing and the general guardianship hearing.

Make extra copies of the Order Appointing Temporary Guardian to

send to your client along with the certified copies of the Letters of

Temporary Guardianship. You can send these documents with a cover

letter, reminding your client of the date/time/location of the

reconsideration hearing and the general guardianship hearing.

9. Step Nine: Serve the Required Documents

The Notice of Hearing (GC-020) on reconsideration of the temporary

guardianship and the Petition for Appointment of Temporary Guardian

of the Person (GC-110(P) with attachments & any confidential

declarations) must be served at least 15 days before the

reconsideration hearing to all the parties entitled to notice of the

general guardianship in Probate Code section 1511(additional days if

mailed). The court may for good cause shorten the time for the notice

of the hearing. (Prob. Code §2250(f).)

The person serving must be over 18 years old and cannot be a party in

the case (in other words, neither the child nor the proposed guardian

can serve the papers). Please refer to Appendix A for a checklist of the


Sample cover letters can also be found at Appendix C.


88

a. Serve Temporary Petition Papers with General

Guardianship Petition Papers

It makes sense to serve the parties only once, so we recommend

serving the documents on the general guardianship and the

documents on the temporary guardianship all at one time. (See Step 8

under “Instructions for General Guardianship.”)

b. Personal Service

Parents, the minor (if 12 or older and not the petitioner), and any

person with legal custody of the minor (if other than parents) must be

personally served with the ex parte temporary guardianship papers.

Generally, if the minor is 12 or older and not the petitioner, you or

your client will have already obtained a Consent and Waiver and Notice

from him/her.

It is usually best to personally serve the parents as soon as possible,

and not attempt to have the parent sign a Consent and Waiver of

Notice or a Notice and Acknowledgment and Receipt, as there usually

is not enough time to do so before the reconsideration hearing.

c. Serve Other Parties by Mail

Follow step 8(b) under “Instructions for General Guardianship.”

d. Serve Social Service Agencies by Mail

Follow step 8(c) under “Instructions for General Guardianship.”

10. Step Ten: Prepare for the Reconsideration

Hearing

a. File Proofs of Service and Consent/Waivers of Notice

Follow Step 9(b) under “Instructions for General Guardianship.”

b. Prepare and File Any Requests to Dispense with Notice

Follow Step 9(c) under “Instructions for General Guardianship.”


89

c. Prepare Client for Hearing

Follow Step 9(d) under “Instructions for General Guardianship.”

11. Step Eleven: The Reconsideration Hearing

Follow Step 10 under “Instructions for General Guardianship.” Note

that the hearing on reconsideration of the temporary guardianship will

focus on whether the temporary guardianship should remain in place

until the hearing on the general guardianship. The court may also alert

you to any deficiencies in notice that can be resolved before the

general guardianship hearing.

It is rare for the court to make any changes at the reconsideration

hearing. Any objecting party will get a chance to appear and state

their objections to the temporary and/or general guardianship. The

court may encourage the objecting party to file their objections in

writing if they have not already done so. The court may also refer the

parties to a Family Conference to discuss temporary visitation, and

may issue orders regarding temporary visitation if appropriate.

If the temporary guardianship remains in place, you do not need to file

anything, since the Order Appointing Temporary Guardian and Letters

of Temporary Guardianship are not set to expire until the general

guardianship hearing.

After the reconsideration hearing, you can follow the remaining steps 9

and 10 in the “Instructions for General Guardianship.”

APPENDIX A: FORMS AND SERVICE CHECKLISTS

Checklist for General Guardianship

Check when signed

Who signs

Name of Form Judicial Council Form #

First Draft

Final Draft

Petitioner

Application for Waiver of Court Fees and Costs

Application for Waiver of Additional Court Fees and Costs

FW-001

FW-002

Judge Order on Application for Waiver of Court Fees and Costs

FW-003

Notice of Hearing GC-020

Petitioner

* & Attorney

Petition for Appointment of Guardian of the Person

GC-210(P)

Guardian Attachment 6** (if non-relative, agreement to furnish information)

Attachment 8** (additional children)

Attachment 9 (need for guardian)

Attachment 10b** (waiver of notice info)

Petitioner Any confidential Declaration** w/ cover sheet Local

Form PB-4003-2a

Guardianship Petition—Child Information Attachment – one for each minor

GC-210(CA)

Petitioner Declaration Under UCCJEA GC-120

Guardian Consent of Guardian and Waiver of Notice (one per guardian)

GC-211

Parent Nomination of Guardian and Waiver of Notice (if mother will sign)

GC-211

Parent Nomination of Guardian and Waiver of Notice (if father will sign)

GC-211

Minor Nomination of Guardian and Waiver of Notice (if petitioner is proposed guardian and minor is over 12)

GC-211

Guardian Duties of Guardian GC-248

Judge Order Appointing Guardian GC-240

Guardian Letters of Guardianship GC-250

Confidential Document Cover Sheet Local

Form PB-4003-2a

Guardian Confidential Guardian Screening Form (one per guardian)

GC-212

Guardian Referral for Investigator’s Report Local

Form PB-4005

Guardian Authorization for Release of Information Local

Form PB-4014

* Petitioner will be minor if minor is twelve or older. If multiple siblings, petitioner will be minor(s) twelve or older. Petitioner will be

guardian if all minor(s) are under twelve.

** Some attachments/forms are necessary only where the facts call for them. You may use pleading paper or Form MC-020 for any

short attachments.

Checklist for Service of General Guardianship

The following documents must be served:

Notice of Hearing on the general guardianship (GC-020)

Petition for Appointment of Guardian of Minor (GC-210(P), GC-210(CA), and attachments

& any confidential declarations)

General Guardianship Hearing: __________ __________________________

Personal Service

The minor (if 12 or older and the petitioner), the parents, any person having legal custody of the

minor (if not the parents), and any person nominated as guardian of the minor must be

personally served. (Prob. Code § 1511(b).) Signed Notice and Acknowledgement of Receipt or

Consent and Waiver of Notice forms are valid substitutes for personal service.

15-day Deadline: ____________________________________

Notice/Acknowledgement of

Receipt and/or

Consent/Waiver of Notice

Personal Service

Sent Ret’d Filed Date By POS

Ret’d

POS

Filed

Mother

Father

Minor (12

or older

and not

petitioner)

Proposed

guardian

nominated

by parents

Person w/

legal

custody

Service by Mail

20-day Deadline (in CA): ________________________

25-day Deadline (outside CA but in USA): ______________

35-day Deadline (outside USA): ___________________

Mailed and/or

Consent/Waiver of

Notice

POS Complete POS Filed

Maternal Grandmother

Maternal Grandfather

Paternal Grandmother

Paternal Grandfather

Proposed Guardian

Sibling #1

Sibling #2

Sibling #3

Emergency Response

Services (Santa Clara Cty.

Social Svcs.)

Department of Family and

Children’s Services ( if non-

relative)

California Department of

Social Services (if non-

relative)

Checklist for Noticed Temporary Guardianship

For a noticed temporary guardianship, the following documents need to be completed, in

addition to the documents in the checklist for a general guardianship.

Check when

signed

Who signs Name of Form Judicial

Council Form #

First

Draft

Final

Draft

Notice of Hearing for Temporary Guardianship GC-020

Petitioner & Attorney

Petition for Appointment of Temporary Guardian of Minor

GC-110(P)

Item 7 (reasons for appointment of temporary guardian)

Attachment 9 (any good cause exception to notice info)**

Petitioner Any confidential Declaration w/ cover sheet** PB-4003-2a

Judge Order Appointing Temporary Guardian GC-140

Guardian Letters of Temporary Guardianship GC-150

Checklist for Service of Noticed Temporary Guardianship


Notice of Hearing on the temporary guardianship (GC-020)

Petition for Appointment of Temporary Guardian (GC-110(P) and attachments & any

confidential declarations)




Temporary Guardianship Hearing: ___________________________________

General Guardianship Hearing: ____________________________________

Personal Service

The minor (if 12 or older and not the petitioner), the parents, and any person having a valid

visitation order with the child effective at the time of the filing of the petition must be personally

served. (Prob. Code § 2250(e).) Signed Notice and Acknowledgement of Receipt or Consent and

Waiver of Notice forms are valid substitutes for personal service. Notice must be served at least

5 court days prior to the hearing.

5-day Deadline: ______________________________________


Receipt and/or

Consent/Waiver of Notice

Personal Service


Ret’d

POS

Filed

Mother

Father

Minor (12

or older

and not

petitioner)

Person w/

valid

visitation

order

Service by Mail




Note that these deadlines should be calculated using the date of the general guardianship

hearing, but you should try to serve these parties by mail before the temporary guardianship

hearing if you can (especially Emergency Response Services).

Mailed and/or

Consent/Waiver of

Notice

POS Complete POS Filed





Proposed Guardian

Sibling #1

Sibling #2

Sibling #3

Emergency Response

Services (Santa Clara

County Social Services)



relative)



relative)

Checklist for Ex Parte Temporary Guardianship

For an ex parte temporary guardianship, the following documents need to be completed, in

addition to the documents in the checklist for a general guardianship.

Check when signed

Who signs Name of Form Judicial Council Form #

First Draft

Final Draft

Notice of Hearing for Temporary Guardianship Reconsideration

GC-020

Petitioner & Attorney

Petition for Appointment of Temporary Guardian of Minor

GC-110(P)

Item 7 (reasons for appointment of temporary guardian)

Attachment 9 (good cause exception to notice info)

Petitioner Any confidential Declaration w/ cover sheet** PB-4003-2a

Attorney Ex Parte Application for Order Pending Hearing

Judge Order Appointing Temporary Guardian GC-140

Guardian Letters of Temporary Guardianship GC-150

Checklist for Service of Ex Parte Temporary Guardianship


Notice of Hearing on reconsideration of temporary guardianship (GC-020)

Petition for Appointment of Temporary Guardian (GC-110(P) and attachments & any

confidential declarations)




Reconsideration Hearing: __________ _______________________________

Personal Service

The minor (if 12 or older and the petitioner), the parents, any person having legal custody of the

minor (if not the parents), and any person nominated as guardian of the minor must be

personally served. (Prob. Code § 1511(b).) Signed Notice and Acknowledgement of Receipt or

Consent and Waiver of Notice forms are valid substitutes for personal service.

15-day Deadline: __________________________________


Receipt and/or Nomination

and Consent/Waiver of Notice

Personal Service


Ret’d

POS

Filed

Mother

Father

Minor (12

or older

and not

petitioner)

Proposed

guardian

nominated

by parents

Person w/

legal

custody

Service by Mail




Note that the court can shorten the time for giving notice for good cause, especially if there is

simply insufficient time to serve the parties by mail within the above deadlines.

Mailed POS Complete POS Filed





Proposed Guardian

Sibling #1

Sibling #2

Sibling #3

Emergency Response

Services (Santa Clara Cty.

Social Svcs.)



relative)



relative)

APPENDIX B: CAREGIVERS AUTHORIZATION

AFFIDAVIT

CAREGIVER'S AUTHORIZATION AFFIDAVIT

Use of this affidavit is authorized by Part 1.5 (commencing with Section 6550) of Division 11 of the California Family Code.

INSTRUCTIONS: Completion of items 1-4 and the signing of the affidavit are sufficient to authorize

enrollment of a minor in school and authorize school-related medical care. Completion of items 5-8 is

additionally required to authorize any other medical care.

The minor named below lives in my home and I am 18 years of age or older.

1. Name of minor:

2. Minor’s birth date:

3. My name (adult giving authorization):

4. My home address: __________________________________________________________

5. [ ] I am a grandparent, aunt, uncle, or other qualified relative of the minor (see back of this form for a

definition of "qualified relative").

6. Check one or both (for example, if one parent was advised and the other cannot be located):

[ ] I have advised the parent(s) or other person(s) having legal custody of the minor of my intent

to authorize medical care and have received no objection.

[ ] I am unable to contact the parent(s) or other person(s) having legal custody of the minor at

this time, to notify them of my intended authorization.

7. My date of birth:

8. My California's driver's license or identification card number:

WARNING: Do not sign this form if any of the statements above are incorrect, or you will be

committing a crime punishable by a fine, imprisonment or both.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and

correct.

DATED: SIGNED: __________________________________________________

SEE NOTICES ON THE BACK OF THIS PAGE

NOTICES:

1. This declaration does not affect the rights of the minor's parents or legal guardian regarding the care, custody,

and control of the minor, and does not mean that the caregiver has legal custody of the minor.

2. A person who relies on this affidavit has no obligation to make further inquiry or investigation.

3. This affidavit is not valid for more than one year after the date on which is was executed.

ADDITIONAL INFORMATION:

TO CAREGIVERS:

1. "Qualified Relative", for purposes of item 5, means a spouse, parent, stepparent, brother, sister, stepbrother,

stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, or any person denoted by the prefix

"grand" or "great", or the spouse of any of the person specified in this definition, even after the marriage has been

terminated by death or dissolution.

2. The law may require you, if you are not a relative or a currently licensed foster parent, to obtain a foster home

license in order to care for the minor. If you have any questions please contact your local Department of Social

Services.

3. If the minor stops living with you, you are required to notify any school, health care provider, or health care

service plan to which you have given this affidavit.

4. If you do not have the information requested in item 8 (California driver's license or I.D.), provide another form

of identification such as your Social Security number or Medi-Cal number.

TO SCHOOL OFFICIALS:

1. Section 48204 of the Education Code provides that this affidavit constitutes a sufficient basis for a determination

of residency of the minor, without the requirement of a guardianship or other custody order, unless the school

district determines from actual facts that the minor is not living with the caregiver.

2. The school district may require additional reasonable evidence that the caregiver lives at the address provided in

item 4.

TO HEALTH CARE PROVIDERS AND HEALTH SERVICE PLANS:

1. No person who acts in good faith reliance upon a caregiver's authorization affidavit to provide medical or dental

care, without actual knowledge of facts contrary to those stated on the affidavit, is subject to criminal liability or to

civil liability to any person, or is subject to professional disciplinary action, for such reliance if the applicable

portions of the form are completed.

2. This affidavit does not confer dependency for health care coverage purposes.

APPENDIX C:

SAMPLE COVER LETTERS

Ex Parte Temporary Guardianship + General Guardianship

Sample Letter to Parent

[Date]

Paula Parent

123 Main Street

San Jose, CA 95112

RE: Guardianship of Molly Minor, Case No. 1-XX-PR-XXXXXX

Dear Ms. Parent,

Our office has been retained by Greta Guardian for assistance in the court proceeding to name Ms.

Guardian as the legal guardian of Molly Minor [OR Our office has been retained by your daughter Molly

Minor for assistance in the court proceeding to name Greta Guardian as her legal guardian]. Temporary

guardianship to Ms. Guardian was granted on [date ex parte temporary guardianship was granted].

Legal guardianship is a procedure that takes place in the Probate Division of the Superior Court. The

granting of a guardianship allows a minor to reside with an adult not the minor’s parent outside the

parental home. In addition, the legal guardian is authorized to do such things as enroll the minor in

school and consent to certain types of medical care. The granting of a guardianship does not end the

parent-child relationship. The guardianship may be terminated or modified as needed, and ends

automatically on the minor’s 18th birthday. A parent may also petition the court for visitation with the

child.

If you are in agreement with the guardianship, please date and sign the enclosed “Waiver of Notice and

Consent” form and return the form to me. A stamped self-addressed envelope is enclosed for your

convenience.

As you can see from the enclosed Notices of Hearing, the court date for reconsideration of the temporary

guardianship is scheduled for [date of reconsideration hearing], and the court date for the general

guardianship is scheduled for [date of general guardianship hearing]. You are welcome to attend the

hearings but your attendance is not mandatory.

If you have any questions about any aspect of this guardianship, please feel free to contact me at (XXX)

XXX-XXXX.

Sincerely,

Amy Attorney

Encl.


Sample Letter to Grandparents and Siblings

[Date]

Susy Sister

456 Main Street

San Jose, CA 95112


Dear Ms. Sister,

Our office has been retained by Greta Guardian for assistance in the court proceeding to name

Ms. Guardian as the legal guardian of Molly Minor [OR Our office has been retained by Molly

Minor for assistance in the court proceeding to name Greta Guardian as her legal guardian]. The

law requires that all grandparents and siblings be notified of this proceeding.

The court date for reconsideration of the temporary guardianship is scheduled for [date of

reconsideration hearing], and the court date for the general guardianship is scheduled for [date

of general guardianship hearing]. You are welcome to attend the hearings but your attendance

is not mandatory.

If you have any questions about any aspect of this guardianship, please feel free to contact me

at (XXX) XXX-XXXX.

Sincerely,

Amy Attorney

Encl.


Sample Letter to Social Services Agencies

[Date]


Santa Clara County Social Services Agency

Program Manager

333 West Julian Street

San Jose, CA 95110


Dear Sir or Madam:



Minor for assistance in the court proceeding to name Greta Guardian as her legal guardian].

Temporary guardianship to Ms. Guardian was granted on [date ex parte temporary guardianship

was granted].

Enclosed please find the Notice of Hearing on Temporary Guardianship – Reconsideration, Notice

of Hearing on Guardianship, Petition for Appointment of Temporary Guardian, and Petition for

Appointment of Guardian.

If you have any questions, please call me at (XXX) XXX-XXXX.

Sincerely,

Amy Attorney

Encl.

Noticed Temporary Guardianship + General Guardianship


[Date]

Paula Parent

123 Main Street

San Jose, CA 95112


Dear Ms. Parent,


Guardian as legal guardian of Molly Minor [OR Our office has been retained by your daughter Molly Minor

for assistance in the court proceeding to name Greta Guardian as her legal guardian].







child.


Consent” form and return the form to me. A stamped self-addressed envelope is enclosed for your

convenience.

As you can see from the enclosed Notices of Hearing, the court date for the temporary guardianship is

scheduled for [date of temporary guardianship hearing], and the court date for the general guardianship is

scheduled for [date of general guardianship hearing]. You are welcome to attend the hearings but your

attendance is not mandatory.


XXX-XXXX.

Sincerely,

Amy Attorney

Encl.



[Date]

Susy Sister

456 Main Street

San Jose, CA 95112


Dear Ms. Sister,





The court date for the temporary guardianship is scheduled for [date of temporary guardianship

hearing], and the court date for the general guardianship is scheduled for [date of general

guardianship hearing]. You are welcome to attend the hearings but your attendance is not

mandatory.


at (XXX) XXX-XXXX.

Sincerely,

Amy Attorney

Encl.



[Date]



Program Manager


San Jose, CA 95110


Dear Sir or Madam:




Enclosed please find the Notice of Hearing on Temporary Guardianship, Notice of Hearing on

Guardianship, Petition for Appointment of Temporary Guardian, and Petition for Appointment of

Guardian.


Sincerely,

Amy Attorney

Encl.

General Guardianship ONLY


[Date]

Paula Parent

123 Main Street

San Jose, CA 95112


Dear Ms. Parent,


Guardian as the legal guardian of Molly Minor [OR Our office has been retained by your daughter Molly








child.


Consent” form and return the form to me. [If you are serving parent via mail: If you are not in agreement

with the guardianship or are not sure, please sign and return the “Notice and Acknowledgment of Receipt”

form as soon as possible, to indicate only that you have received the enclosed papers.] A stamped self-

addressed envelope is enclosed for your convenience.

As you can see from the enclosed Notices of Hearing, the court date for reconsideration of the temporary

guardianship is scheduled for [date of reconsideration hearing], and the court date for the general

guardianship is scheduled for [date of general guardianship hearing]. You are welcome to attend the

hearings but your attendance is not mandatory.


XXX-XXXX.

Sincerely,

Amy Attorney

Encl.



[Date]

Susy Sister

456 Main Street

San Jose, CA 95112


Dear Ms. Sister,





The court date for the general guardianship is scheduled for [date of general guardianship

hearing]. You are welcome to attend the hearing but your attendance is not mandatory.


at (XXX) XXX-XXXX.

Sincerely,

Amy Attorney

Encl.



[Date]



Program Manager


San Jose, CA 95110


Dear Sir or Madam:




Enclosed please find the Notice of Hearing on Guardianship and Petition for Appointment of

Guardian.


Sincerely,

Amy Attorney

Encl.