Articles Posted in Guardianships

An interesting case has just come down from the 6th circuit court of appeals where by a black man attempted to tie the know with his ward who was an elderly white lady. Marreon Gene Starks, an African american man,  who was a 53 year old guardian of Beatrice P., a 53 year old, caucasian lady.

Their were numerous allegations of race and age discrimination hurled at the Santa Clara Judge Thomas Cane in 2014. The son of Beatrice P sought to have the conservatorship removed and the conservator removed whose name was Stephen P. Now in 2017 Starks the guardian of Beatrice P claims his due process rights were violated. His marriage was nullified.  He claims it was nullified based age and race discrimination. Beatrice P. , the 83 year old was barred from testifying in Court.  An annulled marriage basically voids a marriage and places the parties back to where they were before they entered into a marriage.  Thus a party will have not spousal support rights nor property rights to the other spouses property.

At the 2012 nullity proceeding an Alzheimer expert testified on behalf of the Beatrice P and declared that she was “cognitively incapacitated” and she was unable to make informed decisions.  Thus her mental health was completely diminished and she was not able to really ascertain what was going on in her life. This is very important to the nullity proceedings that were in place at the time.  Because in order to nullify a marriage you need to prove at trial one of the grounds of nullification.  One of the grounds is if a party to the marriage can be proven to be of unsound mind. Clearly in this case a medical doctor, Dr. Jonathan Canick, an expert testified to Beatrice P.’s unsound mind.

This case has stirred controversy with custody and guardianship laws across the world as a couple and the parents of a baby child.  Other relatives and friends are seeking the guardianship of the young child of Mack and the father Tommy Schaefer.  A Guardianship may be the only answer to the childs future as Heather Mack the mother and Schaefer will face multiple years in prison for the murder of Sheila von Wiese-Mack.  They allegedly murdered Heather Mack’s mother and stuffed her in a suitcase.  The murder took place in Bali.  It has shocked the world that such a heinous crime was performed by the Daughter upon her own mother.

It seems that the Paternal grandmother is seeking guardianship of the minor child and has filed such papers in the United States. Heather Macks stories regarding the guilt of her Husband Tommy have changed since she previously stated on youtube that Tommy was innocent.  However, a jury in Indonesia found him guilty of Murder regardless of Heathers statements.  The boyfriend Tommy stated that he was using self defense to protect Heather from her mother.  he used a Metal fruit bowl to hit the mother Sheila in the head.

The Bali courts convicted the couple back in 2015 of premeditated murder of Sheila.  Heather got 10 years in prison and her boyfriend Tommy Schaefer got 18 years in prison.  During the trial for Murder Heather had a baby which is at issue of the guardianship in Chicago now. Heather wanted to kill her mother on her own.  Her boyfriend could not find a hit man so that plan failed.  Therefore Heather concocted another plan to kill her mother.  She asserted that her mother killed her father so she wanted revenge.

Many people call me asking for visitation rights with a grandchild or a child they have a close relationship with and suddenly are alienated from that child.  They feel lost and helpless from the lack of power and control of the situation.  They seek someone to help them reconnect with a lost child whom they had a strong bond with and are in a state of panic over not having any recent contact with that child.  I respond to them there is a remedy and it does not involve family court.  They are often oblivious to the solution.  But I tell them have you heard of a Guardianship? They seem surprised at my response and solution to there lack of contact to the child they have grown so close with.  They then proceed to ask do you need to be related by blood or be a parent to get a Court order getting visitation or custody of the child?  And I tell tell them to get appointed as a Guardian of a person in Probate Court you do not need to have any familial ties to that child as in a adoption or a foster parent.  I further tell them that if you have a strong bond with the child and have assumed the role as a parent to that child and have participated in the caring for and financial well-being of that child the Court will assess you as a prospective guardian of the child.  Once that occurs you can assume the role of a de facto parent of that child.

What do Guardians do? well they hold many rolls for the child.  They can be the caretaker of the child as in a provider for shelter, healthcare and medical decisions for the child.  They can determine where the child goes to school.  They can assist the child in making life decisions that a parent usually makes.  You do not even need to be biologically related to the child to be appointed by the Court.  Often family friends of the child as in godparents play a close role in raising a child and the parents simply cant handle the job.  The friends or godparents can then go to court if they meet the criteria stated above and get a guardianship.

In addition, Grandparents often feel left out of the parenting process by their own children and then turn to a guardianship to gain access to their grandchild.  However, they must meet the stringent criteria the “best interest” standard the Court invokes to appoint a Guardianship of the Person in Probate Court. Meaning they must have a relationship with the child the court determines that is in the best interest of the child that the grandparents must step in as parents.  Often in these cases the parents cannot handle the parenting role and the grandparents must intervene as caretakers and often intervene under emergency situations.

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Letters of guardianship are the physical evidence of the appointment and qualification of an individual or entity as guardian of the person or estate.  Letters are issued by the court clerk, who keeps the original and issues certified copies for the guardian. Among other things, letters of guardianship are used by the guardian to marshal the assets, transfer title to bank accounts and corporate shares, and prove to a school or health care provider that he or she, when appropriate, has the authority to give consent to the minor’s enrollment in school or to required medical treatment.

Before the court clerk will issue letters of guardianship, three prerequisites must be made:

  1.  If a bond is required, the appointed guardian must post a bond

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Anyone qualified to petition for the appointment of a guardian may petition for the appointment of a temporary guardian.  Prob C. Section 2250(a).  Thus, the minor if age 12 or older, his or her spouse, or a relative or “other person on behalf of the minor” may file the petition.  See Prob C Section 1510(a). Usually, the party filing the petition for appointment of a guardian also files the petition for the appointment of the temporary guardian.

Choosing the Proposed Guardian:  Before preparing the petition for appointment of a temporary guardian of the estate or person, make sure you ask a bonding company whether the proposed guardian can qualify for a bond.  If the proposed guardian fails to qualify for a bond, you should petition for the appointment of another individual who is bondable.  This can be another family member, a friend, the public guardian or private professional fiduciary.  Other alternatives if the proposed guardian does not qualify for a bond including placing the guardian’s funds in a blocked account or requesting an order that the letters of temporary guardianship specify that the temporary guardian is not authorized to take possession of money or any other property without a specific court order.

Contact an Orange County Guardianship Lawyer today for help.

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When you apply for and are granted a temporary guardianship of a person, the court issues what are called Letters of Temporary Guardianship or Conservatorship from the clerk of the court. They also issue a court order.  Both the Letters and Order should be kept by the temporary guardian of the minor, if age 12 or older, and given to daycare providers, school personnel offices, and so forth.  Certified copies will be needed for enrolling the minor in a new school, obtaining medical treatment, opening bank accounts or transferring the minor’s assets.  If the court grants an extension of the order and letters, it is good practice to obtain certified documents.

Contact an Orange County Guardianship Lawyer today for assistance.

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California Judicial Council Form GC-248 itemizes the duties of a guardian. Briefly, some of the duties are as follows:

1) The guardian of the person of a child has the care, custody and control of the child. The guardian is responsible for providing food, clothing, shelter, education and all the medical and dental needs of the child. The guardian must provide for the safety, protection, and physical and emotional growth of the child.

2) The guardian has the full legal and physical custody of the child and is responsible for all decisions relating to the child. The child’s parents can no longer make the decisions for the child while there is a guardianship in place. The parents’ rights are suspended (not terminated) as long as a guardian is appointed for the minor.