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136: Guardianship Explained: Essential Insights for Effective Estate Planning

Have you ever considered what would happen to your children if you passed away? It can be daunting and hard to think about; no one wants to plan for the possibility where they aren’t around to see their kids grow up. We often talk to clients who follow that old superstition that if they don’t think about it, then it won’t happen to them, so why plan, right? In our opinion, that isn’t the best course of action. While it’s rare for a child to lose both parents and be taken in by a guardian, it does happen, and it’s crucial to be prepared. Fortunately, guardianship is an element you can include in your estate plan and a planning element you should take action on.

In this episode of Absolute Trust Talk, we’re joined by Lara Heisler, a seasoned Bay Area attorney with over 25 years of experience specializing in conservatorships and guardianships. Together, we’ll cover everything from the legal responsibilities of a guardian and the process of becoming one to how to have essential conversations with your family and avoid the risk of foster care. If there’s one key takeaway from this episode, it’s this: The more uncomfortable family conversations you have when life is comfortable, the better prepared you’ll be when life gets challenging. Let’s get started!

Time-stamped Show Notes:

0:00 Introduction

0:55 Please join us in welcoming Lara Heisler to the show!

3:02 Guardianship – It’s a term we’ve all heard, but not everyone knows what it truly means. Here’s what you need to know.

4:55 How can someone obtain guardianship of a child?

8:43 In this segment, we examine an extreme guardianship case and then discuss some of the more common guardianship scenarios.

11:43 When nominating family members for guardianship, it’s essential to explain your reasons for doing so, so they aren’t left guessing.

17:03 It may also be important to name people you don’t want as your child’s guardian.

19:04 When it comes to guardianship, who steps into the role first matters, especially under extreme circumstances like the court case discussed.

21:16 “What happens if…” It’s a conversation none of us want to have with our family and kids, but here’s why you should.

26:18 While parents of children under guardianship still have many rights, enforcing those rights can be challenging.

28:40 Have you ever wondered about the visitation rights of grandparents and other family members of a child under guardianship? Lara will answer all your questions here.

30:36 Next, we’ll discuss the procedures for ensuring the child’s wishes are considered in a guardianship case.

33:48 In this segment, we explore what happens if a child has no relatives in the US and what you can do to prepare for this situation.

37:41 While conservatorship does not provide long-term oversight, the courts have a rigorous process to ensure the guardian is someone the child will be safe with.

40:08 If there’s one piece of advice you should take away, it’s this: The more uncomfortable family conversations you have when life is comfortable, the better off you are when life gets very uncomfortable.


Welcome to another episode of Absolute Trust Talk. I’m Madison Gunn, and I’m here with Kirsten Howe, who’s letting me speak today. And our illustrious guest, Lara Heisler. We are normally doing – when we do estate plans for people – we always talk about nominating a guardian for minor children. And most people don’t realize what that actually entails. Some people will hold off on doing their estate plan because they don’t have anyone they want to name, or they think that if they don’t do it, nothing bad will happen, right? That’s generally the consensus among people—the general superstition.

We wanted to bring in Lara today to talk about what guardianships actually look like. We have clients sign documents saying who they want to name as guardians, but it doesn’t actually contemplate what would happen if that catastrophe takes place.

We have Lara Heisler with us. She’s been practicing law for over 25 years. Her work is primarily focused on conservatorships and guardianships, and as an experienced trial attorney, she also handles trust and elder abuse litigation. She serves as a court-appointed counsel in conservatorship cases in Contra Costa County and a court-appointed guardian ad litem in both Contra Costa and Alameda counties. She’s an East Bay native and passionate about serving the community where she grew up and is raising her children. She received her BA in literature and writing from UCSD. She went to law school at USF, joined the bar in 1996, and the New York bar in 1997. – So that’s fun. That’s a fun tidbit. – She started as a criminal defense attorney in the Bronx –Holy cow, Lara! – And then returned to California and fell in love with probate law. She’s a founding partner of Heisler, Rosenfeld, and Zaragoza, and assists clients with all aspects of probate in the state litigation.

There’s a whole other paragraph of impressive credentials that I won’t get into because that’s not what they’re here for. Everyone’s here to listen to Lara, not me rattle off her CV. Welcome, Lara. We’re very happy to hear what you say about guardianships. We’re excited to learn.

Thank you, Madison, and thank you, Kirsten. I’m so happy to be here because I have to say that guardianship practice is my favorite part of practicing law. I love representing children, parents, and proposed guardians. It’s really helpful work. Great. That’s good to know. It sounds as dramatic as family law, so it’s nice that it has that rewarding aspect to it.

Estate plans where clients have minor children usually include a nomination of guardianship, like I mentioned, to name someone to take care of their child or children in the event that both parents die, which I know is highly unlikely, but it is comprehended a lot by our clients.

Can you briefly explain what guardianship consists of?

Sure, guardianship is a custody order. Just like any other custody order, it can be changed and modified when it’s in the best interests of the child to do so. I know some people think that guardianship is either temporary or permanent, but there’s no such thing as permanent guardianship, just like how when parents are divorcing, and maybe the first five years, the child lives primarily with mom and then has dad on the weekends, but something changes… You can always change a custody order.

And three courts do custody orders, and some probate courts do guardianship custody orders. Family court does custody orders between a mom and dad or two parents. Custody orders where neither parent is able to care for the child and the state has gotten involved – that’s called dependency court, and that’s where you have foster care.

So, guardianship is a custody order if you, as a parent, are unable to care for your child. It can be because of death or incapacity or injury, but that’s what it is born of. All right. Thank you.

And I know there are two types of guardianship. There’s the guardian of their person and guardianship of the estate. Estate means you’re in charge of the child’s money. We’re not going to talk about that here because if you have an estate plan set up, you won’t need guardianship of the estate. In the estate plan, the nomination might be in a will, power of attorney, its own document, or all three, but it’s just a piece of paper.

Can you explain the guardianship process?

You can use a hypothetical if that makes it easier. If someone’s parents die and both those parents nominate Aunt Sarah, what does Aunt Sarah have to do?

Sure. If you’ve been nominated to be a guardian or feel that a guardian is needed for a child, there is a process you can go through in all the courts in California. You can apply for an emergency temporary custody order, and you can apply for a custody order that will continue until the child turns 18 unless or until it’s in the child’s best interest to change it. When you’re seeking custody of a child who’s not yours – you’re a stepparent, you’re an aunt, you’re a neighbor, you’re a grandparent – it’s very paperwork heavy.

It’s helpful to have a lawyer or a paralegal go over the documents with you, but actually, as a practical matter, most of the time, when people seek guardianship of a child, they do it on their own properly. Luckily, all the courts are aware that if somebody’s coming to court to ask for custody of a child who’s not theirs, we know two things right off the bat. That person A) probably has a heart of gold because they’re willing to take in someone else’s child and be something bad has happened to get us to this point. And B) something bad has happened in order to get us to this point.

The courts offer various volunteer assistance to help people because there’s a lot of paperwork. You have to notify every person closely related to the child to ensure there’s no better or more suitable candidate. Grandparents, siblings, parents, sometimes aunts and uncles, sometimes cousins, stepparents, they all often will get noticed. That’s how it works. A lot of paperwork, but it can happen really quickly, particularly in Contra Costa County, where I work a lot.

If you seek a temporary conservatorship, you can go to the court in the morning, the staff will help you fill out the paperwork, you submit it, and you usually get an answer within a day or two, and then you get a temporary emergency order allowing you to have custody temporarily and then the court would set a hearing date for you to tell the court in more detail why. In the beginning, you say there’s an emergency. “Somebody needs to enroll this child in school. Somebody needs to be able to take this child to the doctor. Court, please. I know you don’t know much about the case, but give me this emergency order, and then we’ll come in in a few weeks when the dust is settled.” And that’s how it works.

And if nobody does that, let’s say in the scenario that Madison described – the parents have died, and this child is now an orphan, there’s a possibility the child would end up in the foster care system.

Yes, so the way it works typically is if the parents are both deceased or both unavailable and there’s an urgent need to get the child placed somewhere, the Child Protective Service comes in right away, and they will try to place the child with a family member if possible. They have to do a background check and make sure they’re not placing the child with Uncle Morty, the pedophile – a registered sex offender. They do a little background check, and then they will place the child with a family member or in foster care, and it’s pretty scary if there’s no paperwork.

I have a case I’m working on right now that is awful. The mom was shot by the dad, and Dad was immediately taken into custody, and Mom was not available. Paternal grandparents arrived on the scene right away, and Child Protective Services was there. After they interviewed the child, they allowed the paternal grandmother to take the child home with instructions to go to court the next day and file for guardianship. That’s a typical way it would work in an emergency involving law enforcement.

But what we see a lot in guardianship court, unfortunately, is there’s a parent with a substance abuse issue or mental illness, and its grandparents or aunt or uncle or stepparent or best friend’s parent who comes in and says, “This child is not getting the care they need, and I’m going to step in and help.” That’s the more typical scenario.

You mentioned all those family members and who gets noticed and all of that. Is there a hierarchy? For example, in probate court, there’s a hierarchy of who can be the administrator. Is there a hierarchy in guardianship court? For example, does the aunt get hierarchy over a grandparent or what have you?

No, but the hierarchy comes from the excellent estate plan you’ve done with your attorney because if you put a nomination in writing as a parent, the court will take that very seriously. If I’m the named one in my brother’s estate plan, should God forbid something happen to him and his wife, I know this. So, I could immediately look for the document and bring that in along with my paperwork. And it’s another piece of evidence. And that would give you a leg up over everyone else.

But that’s not a guarantee. It’s evidence, which the court will give some – they’ll pay attention to it. Exactly. I know many people when they do their estate plans. Like you said in the beginning, Madison, a real motivator is ensuring their children are cared for when they’re gone. And that makes perfect sense. And it is important to designate a surrogate caregiver.

Unfortunately, there’s a belief that if you do that, Presto Change-O, if it happens, is the person who will be in charge. That’s just simply not the case. It’s one piece of evidence. And what it’s always going to be controlling: “Is custody to the parents either impossible or detrimental?” And two, “Is the child’s best interest going to be met in a guardianship?” And “Can the guardians provide a safe and stable home?” Those are the big, big focus of the court, which is actually a good thing, right?

Many of us do our estate plan, maybe when we’re about to have a child or when our children are two and we think that our parent or sibling would be the perfect candidate. But then they get old and sick, or they move away, or your kid is in high school, and they wouldn’t want to change high schools and go live, even just in a different school district. It’s great to have that piece of evidence. It’s also good to always adjust your estate plan, go to your estate planner, and ensure it’s up to date. But it’s just something to think about – it is a vote from mom and dad, wherever they are. We have agreed that it’s worth something but not dispositive.

Would you say, Lara, perhaps amping that up with an explanation of why you’re making this choice is a good idea?

Absolutely. A couple of things that are really helpful to give the nomination a little extra oomph is 1) have a frank discussion. If the children are old enough, have a discussion with them and tell them what the plan would be, God forbid.

I’ve actually had that conversation with my 11- and 13-year-olds. I was like, “You know if anything happened, you’d go live with your Uncle Mike,” and they were like, “Why? We’d want to live with our neighbors.” Well, you wouldn’t because that’s a lot to ask of a neighbor. It’s good to have the conversation, and it’s really good to put in writing why you’re doing what you’re doing.

I’m selecting my sister because I believe she’s the most like me, and it will be the most comforting to my children if I’m not there. I think that she will raise them the way that I would. And then I would tell that sister, “Okay, I’ve named you.” And then I would tell my mom, “Listen, I always would want you to be a part of my child’s life, but I nominated my sister just because. I’m hoping this never happens, but if it does, I want to ensure everyone’s healthy, and you can be a grandma and not have to worry about raising another child.”

I would have those conversations because when someone dies, everyone who’s left behind who loved that person feels helpless and responsible. That’s where we get problems. Everybody feels a moral obligation to take in this beloved child, and then when you have the maternal side versus the paternal side, that’s where things can get dicey.

Do you do you think it would be or is it good evidence to write like the antithesis of a nomination? Like, “I absolutely do not want these three family members to ever, ever have custody of my children, and here’s why,” or something like that? Would that be helpful or…?

It’s not good for the dynamics. Let’s say I was going on a trip to Europe and flying with Zuckerberg in a small plane. And I was nervous. If I had an irresponsible or abusive family member who I kept cordial with but I would sooner Nominate Donald Trump to be their guardian –or whatever, Joe Biden, whoever you don’t like – then I would maybe put something in writing about the reason, “Please do not put this person in charge,” and I would probably give it to the person who I’d want to be in charge and have it notarized. But most people don’t want a court disaster that much.

You talked about people being superstitious. That’s a big ask, but if you are really concerned about someone in the family who you think would interfere with your plans, then absolutely put everything in writing. It’s all evidence.

I assume when you hear about it, families have their uncle Morty, but he might not be registered anywhere or have a record. They might want to be extra clear about that. It doesn’t mean it ever has to go to court. It’s only if that person tried to step forward and tried to get guardianship. It doesn’t have to be spread around preemptively. Exactly.

I think it would be like your case that you’ve talked about where the one spouse injured or killed the other spouse – which there’s been an influx of that in the news lately, weirdly enough for this conversation – and they immediately place the children with the grandparent, and it’s like, “Doesn’t common sense prevail that the parent of the one who committed the crime probably isn’t ideal?” It doesn’t mean they’re bad because that doesn’t mean they did it by any means.

Funny you should mention it. That’s the exact circumstance in the case that I’m working on now. I represent the maternal grandmother who wants custody but doesn’t live in the Bay Area. She lives further away. The paternal Grandmother lived a block from where Mom, Dad, and the baby lived. She made it to the courthouse steps first. You would think that would not be that big of a deal. Turns out, it’s a huge deal – whoever gets there first. Because one of the big things that the court cares about – and it makes sense – is maintaining stability, and not rocking the boat.

Whoever gets there first and sets up a routine for that child, finds a therapist, gets them in daycare, or is able to replicate the kind of life they had before their loss has a huge advantage.

In that scenario, it doesn’t necessarily matter who you nominated. That’s just a piece of evidence in favor, but if you dragged your feet for six months filing a petition while someone else was taking care of the child, it wouldn’t have that much weight. Or in two weeks, in my case. It’s brutal.

And I had another case years ago where – so awful – two families and their young kids were on a small plane. The two families without their young kids were on a small plane. They were celebrating anniversaries, and when the plane crashed, it left behind seven orphans from two different families. In both cases, they were young parents, so they hadn’t really done a full estate plan, although one of the moms had written, “If anything happens, I want the child to go to my mom.”

Well, sure enough, both sets of grandparents in both cases filed competing petitions, and the litigation went on for years. They’re all grieving, and everybody wants a do-over. You know, it’s heartbreaking.

There are a lot of factors that go into it. But the clearer you are and the more you can communicate with family members what your wishes are, it will help in the end. Because, like in the airplane case, the couples were so young that they hadn’t really had those conversations. And I think that if they had, it would have made the grandparents feel more comfortable with “Okay, well, why are you asking and, why are you asking?” Yeah, because those competing sets of grandparents may not know much about each other, A. Especially if the grandchildren are very young, this is also true in other aspects of estate planning. It’s the grief coupled with surprise, I think, is a very bad combination—results in a lot of litigation.

I think a lot of times; litigation could be avoided by having the conversation directly ahead of time so that people are not smacked upside the head with some decision they didn’t see coming. And frankly, they don’t understand. Because they don’t know what the reasoning is. “Why did my mom leave so much more to my sister than me?” Or, “Why is she leaving my money in trust? She doesn’t trust me. It’s a lot – they can’t get the closure. They can’t ask the questions. They can’t ask Mom, “Why did you exactly?”

In a lot of trust litigation, which we do, it seems like it’s about who’s going to get what, but really, the nub in the core is, “Who did mom and dad love best?” It can be the same way in guardianship, with deciding who the best candidate is for guardianship.

Luckily, again, thank God, it’s very unusual for both sets of parents to be gone because of death. What we see often are parents who are struggling with mental health or substance abuse issues who get better sometimes. Sometimes they do, sometimes they don’t, which is why it’s important to understand that guardianship is not a permanent, unchangeable order.

It’s always helpful if you’re a grandparent and you’re worried about your daughter – because she’s in a relationship with maybe someone who’s abusive and she’s got substance abuse problems and you feel like your grandchild is not safe – if you go into court and talk to your daughter about it first and explain why you’re going in – and “This is a chance to give you some help to keep your child safe, and you can terminate this guardianship as soon as it’s in the best interest of your child to do so. I don’t want to take your child away forever, but you need help right now.”

I often wish that grandparents would have that talk with the parents first because I find that as a lawyer if I can get Mom and Dad—if I can get Dad and Grandparent—together and really talk about what they want, they usually want the same thing for their child, which is for the child to have a loving relationship with everyone and to be safe. If you can explain how to meet those goals early on, you can avoid litigation.

Lara, does the parent whose child is now in guardianship, does the parent still have, say, visitation rights? Is that something that the court works out in an appropriate case?

That’s a really good question. And that’s another distinction between when you adopt a child and when a child is placed in foster care. In a guardianship, parental rights are not terminated. It’s a custody order. The parents are still financially responsible. Often, they’re still to be consulted for medical issues and things like that. They don’t have the final say, but you’re supposed to keep them in the loop. And the court will create visitation schedules or supervised schedules if that is in the child’s best interest.

The hard part is that if a child is taken away from their parents through child protective services, child protective services offer visitation supervisors for free, counseling to everyone for free, and drug testing for parents for free. Unfortunately, in guardianship court, it’s a lot more do-it-yourself.

If the court has been persuaded that it’s not safe for the child to be with Mom or Dad, it’s up to them on their own without an attorney to find the evidence they need to swing the pendulum into convincing the court that they’re safe. They may have to pay for their own drug tests or the professional supervisor.

That’s not always like reunification first, like it is in dependency court. Exactly. Which is sad.

Sort of related to that previous question: do grandparents have any rights when they are not the guardians? But there is a guardian in place.

In a family court, grandparents do have visitation rights. In guardianship courts, it’s a little fuzzier. The court always wants to encourage the named guardians to facilitate healthy relationships. When you become a guardian, you must sign this sort of laundry list of duties you would do. One of them is to maintain reasonable visitation that’s in the child’s best interest.

Not all kids in guardianship cases get attorneys, but if they do, that attorney can be very helpful in guiding the guardian to know what kind of visitation is in the minor’s best interest. If there is no attorney appointed for the kids, maybe at the beginning of a case, everybody agreed, and the child was six months old and couldn’t talk to an attorney anyway. Maybe six years later, Mom has gone through a program, and Grandma still feels nervous about unsupervised sending the child. Then, the court will come in and talk about what is appropriate. You were asking specifically about grandparents. The court will generally frown upon a guardian who creates unreasonable obstacles for any relative to have contact.

That led to my next question in the sense of when you said the child was old enough or not old enough to talk to their attorney if they had one. And that is just overall what, say, do kids get in this process? I mean, we all talk about it as if it’s babies that are being orphaned. But in reality, they could be teenagers. You know, there’s a whole 18-year age range in there that they could be. Explain how they get a say in the process. I know there’s no magic number, just like family law. But how do they handle that?

If it’s very contested and there’s an issue, whether the child can speak or not, the court will appoint an attorney for the child. Now, if the child can speak, it is the court-appointed attorney’s job to figure out what the child wants, but they’re not directed to advocate for what the child wants, which I think a lot of us who practice this law are very relieved about because we are charged with advocating for what is in the child’s best interest and telling the court what the child wants.

Let’s say the child wants to be with Mom or wants to be with an uncle who doesn’t quite have it together but could, then the court-appointed counsel can help make it so that it would be in the child’s best interest to live with the person they want to live with. But there are statutes that say if a child tells their attorney, “I want to testify,” – which they never do. In my 20-year career, I’ve had it happen twice where the children have testified on camera, which means just the judges in the judge’s office and testified as to what they wanted.

As Minor’s Counsel, if the child can express a preference, I give that weight, but I don’t give it more weight than my own good judgment. And you were talking about teenagers, it’s really interesting. If you have a teenager over 14 who wants to live somewhere, it’s very hard to make them live where they don’t want to live. It’s almost impossible as a practical matter, so it puts you in a weird place as Minor’s Counsel because you really want to help the family. You can be really helpful. You can help the family by saying, “Your child really wants to be with you. We can convince the court if you do X, Y, and Z.” You get very intimately involved with families when you work on guardianships as an attorney

One of the questions I get, or at least we’ve come across, I don’t know, probably a significant number of our estate planning cases are individuals who maybe aren’t US citizens, their children are. Or, they are US citizens, but they don’t have any other family here. And it might be Canada, it might be the Philippines. I mean, it can be close to really far away. What happens with that? I mean, I’m always cautious when they name overseas people, and I’m like, “Can they take your child out of the country? Can they get here? Can they do all the things they need to do to get guardianship? Do you have anybody here who can temporarily be guardians so they don’t go into the foster care system even temporarily”? No one wants that for a minute, so what are your thoughts on that, and how do you see it – I know in your practice that both parents dying and the kid being an immediate orphan is rare, but that’s what everyone’s fear is.

It’s rare, but it happens. There is a real problem with naming someone who’s overseas or who’s more than an hour away because—like I explained in my case that I’m working on now—whoever is physically there has the ability to work with the authorities to place the child in an appropriate home instead of foster care.

The default is if child and family services are called because there’s a child who’s alone, then the first step is to get them into a foster program. As an estate planner, I would discourage my client from naming someone out of the country.

But second of all, if they felt very strongly about it, then I would say if there’s a teacher, if there’s a friend, if there’s a neighbor who you can talk to and introduce them by phone or Zoom to the person overseas, have that conversation and ask for that person to either petition to have themselves appointed as guardian or petition on behalf of the person overseas because if you become the guardian, the child doesn’t have to live with you instantly.

You can decide, “Until I get into the country, you will stay with this person.” The more conversation and writing you can have, the better, but it’s really important to have a m appointed person who is local because it can happen fast.

What if the family expects to take the child out of the country? They would have to get a court order for that?

Yes, it gets complicated because, let’s assume dual citizenship just so we don’t have to discuss that. I mean, it just depends. I have cases where grandparents have been able to fly with children without the birth certificate without the guardianship order. It just depends on who you get or like and how related you look. I mean, really, it’s scary, but they don’t really check. I mean, we’ve all flown with our kids. They really never ask. Interesting. There’s stuff you can do.

And then, is there long–term oversight? Because I know it’s just a custody order. If no one fights or anything to change anything, does it just keep chugging along with no court involvement until that child’s 18? Yes. Okay, just like in family court, similar unless a parent moves to change the visitation or custody.

There’s no oversight like a conservatorship. No, but the thing that we haven’t talked about that makes the court feel comfortable doing that is at the very beginning, not only do they do like a quick background check before placing a child temporarily with a non-parent, but there’s also a court investigator who does a very thorough investigation who would talk to all the relatives they could find, any therapist, any teacher. They would do a really comprehensive set of recommendations.

And I think if the court has worries, it will delay making a general guardianship. I say temporary and general rather than temporary and permanent.

Before granting a general, they would keep kicking it out. I have a case right now where I represent a child and Mom did all the things that she needed to do to get custody back, but I just wasn’t ready. I asked, instead of terminating the guardianship, can we suspend it? And, you know, there are different things you can do to provide oversight.

The court is sensitive to these issues, so they’ll come up with creative ideas, like, “Let’s suspend parental, let’s do a temporary or make a suspension instead of a termination.” The court has a lot of flexibility. And oh, the other thing is, if you’re a court-appointed counsel, you can ask to be relieved once the general is granted, or you can serve until the child turns 18, which is what I typically do. And I tell the child, if anything happens, to call me, and I can go into court. So, there are some checks and balances. Okay, very interesting. Yeah, thank you.

I think that was quite the lesson. I appreciate that because the more we tell our clients, the better we can prepare them for these so it’s not litigation. No one wants contested guardianship.

If you estate planners can get as much information as possible when it looks like a complicated situation for guardianship, I recommend it. I always recommend that the more uncomfortable family conversations you have when life is comfortable, the better off you are when life gets very uncomfortable.

Absolutely. Always good advice Thank you, Lara. Thank you so much. This was very informative for us and clearly for our audience too. Thank you for having me. All right. Thank you, and you can get our podcast where you’re listening to it now or wherever you normally get that. Thank you, and we’ll be back.

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