Estate planning can be a complex process, which is even more complicated when an individual still has minor children. Parents working on an estate plan must name an executor and develop a plan for their assets to ensure that their children are cared for until adulthood. They must also consider who to name as a guardian for their children.
The Role Of A Guardian
A guardian is an individual who will assume the legal responsibility of caring for the child (or an adult who is unable to care for his or herself) if the parents should die. A guardian can be designated in a will or appointed by a judge in a court of law, usually a probate court or family court.
Guardians have an incredible amount of responsibility for their wards. They handle the day-to-day issues with raising the children, and they act as the ward’s fiduciary. Fiduciaries are responsible for the general well-being of another individual (or individuals) and their finances. As a fiduciary, the guardian that is named or appointed is legally and ethically bound to put their wards’ interests ahead of their own personal interests.
A guardian’s role is similar to a power of attorney; both are granted the rights to make legal, financial, and medical decisions for another individual. However, a guardian may have more discretion in making certain decisions. Also, third parties are compelled by the court-ordered nature of guardianship to recognize the guardian’s authority to act on behalf of their ward.
Selecting A Guardian
Choosing the right legal guardian for your child is an incredibly difficult task. After all, most parents can’t imagine anyone else raising their child. And with any luck, your named guardian will never have to fulfill their role. But in the event of the unthinkable, selecting the right guardian is incredibly important. This person and their immediate family will become a daily part of your child’s life.
Many individuals agonize over selecting the right guardian and often come up with a list of traits they do not like about potential guardians. But the truth is that there will never be a perfect match for what you would like in an ideal guardian. When considering who to name as a guardian, it is good to keep a few things in mind.
- Create a list of your values. Compare them to the values you see in your candidates for a guardian. You will want to be sure that the guardian you choose shares similar values.
- Don’t rule out someone based on one trait. It would be easy to dismiss someone who isn’t married or is older. But remember that you can change your guardianship designation at any time.
- Your first responsibility is to your child – and ensuring they will have a happy and healthy home, no matter how that may be achieved.
- You will want to select someone who will have the ability to carry out your wishes and who genuinely cares for your child.
Once you have someone in mind, you must discuss your wishes to ensure that they are up for the task. You will then have to formalize the guardianship designation in your will and provide any additional instructions on raising your child. These instructions must also be written down, although they don’t have to be lengthy. You can include short requests. It’s also a good idea to include a secondary guardian in the event that something happens to the primary guardian.
What Happens If I Don’t Name A Guardian?
If you don’t include a guardianship designation in your will, the court will choose who will care for your children. And while the courts generally consider the closest living relative, it would be a mistake to assume this person will automatically be named guardian. So, even if you want your children to be taken in by your closest living relative, you need to formalize your wishes in your will.
In the absence of a guardianship designation, anyone can petition to be named guardian or object to a guardianship. Effectively, this could turn the court proceedings into a free-for-all. There could be several petitions for guardianship if you have multiple members of the parents’ family that want to be the guardian.
It can take time for the court to decide who can provide the most suitable environment. During this time, your children will experience much emotional turmoil during what is likely the most challenging period in their life. Assigning a guardian can ensure they have somewhere to go immediately and can begin to heal and find normalcy in their life again.
IF you have no family and fail to name a guardian, your child can become a ward of the state and enter the foster care system – a heartbreaking scenario for any parent even to consider.
Addressing guardianship is an arduous task for parents to face, but it’s still crucial to ensure your child is cared for in the event of your untimely death. Many parents find that working with an expert estate planning attorney can help them plan for the unthinkable – and give them peace of mind that their child’s future will be secured no matter what may happen.
