It’s often said that a main reason people put off creating an estate plan is because of the difficulty in choosing a guardian for their children. However, that decision is one of the most important estate planning decisions you must make.
If you’re hesitant to name a guardian for your children, consider the alternative: A court will name one, without any input from you. So, it’s important to choose a guardian now, while you still have a say in the matter.
In most cases involving a parenting couple, you designate the guardian in a legally valid will. This means that the guardian will raise your children if you should die unexpectedly. A similar provision may address incapacitation issues.
Choose the best person for the job and designate an alternate if that person can’t fulfill the duties.
Frequently, parents will name a married couple who are relatives or close friends. If you take this approach, ensure that both spouses have legal authority to act on the children’s behalf.
Also, select someone who has the necessary time and resources for this immense responsibility. Although it’s usually not recommended, you can have different guardians for different children. Consider, also, the living arrangements and the geographic area where your children would reside if the guardian assumes the legal responsibilities. Do you really want to uproot your children and send them to live somewhere far away from familiar surroundings? Don’t ignore these factors, or the myriad of others that impact your decision.
You don’t have to justify your decision, but it can help to prepare a letter of explanation for the benefit of any judge presiding over a guardianship matter for your family. The letter can provide insights into your choice of guardian.
Notably, the judge will apply a standard based on the “best interests” of the children, so you should explain why the guardian you’ve named is the optimal choice. Focus on aspects such as the children’s preferences, who can best meet the children’s needs, the moral and ethical character of the potential guardian, and the guardian’s relationship to the children.
As previously stated, the court will use the standard of the best interests of the children. If the court agrees that the children’s best interests is for you to become guardian — considering all the facts and circumstances — it will approve the arrangement. Most states require guardians to sign an oath before they can assume responsibilities. In addition, the court will generally require documentation of the guardianship. We can assist you with this.
In other situations, courts will grant guardianship in cases where a child has been abandoned or the judge decides that the child should be removed from the parents’ custody. Frequently, you’ll have to prove in court that the parents are unfit.
Furthermore, other relatives, such as grandparents, have certain legal rights and must be notified about guardianship hearings. Although you won’t generally need formal consent from all parties, any objections they raise could adversely affect your case — not to mention the tension it will likely create. If emotions spill over, consult us immediately.
Your selection of a guardian can have a profound impact on your children, so it’s important to choose carefully. We can provide the necessary guidance.