Guardianship allows a person to manage the affairs and assert the rights of another person who is unable to do these things.
There are two common ways in which a guardian is appointed:
- For an adult who is incapacitated. The person might be in a coma from an injury or they might be suffering from dementia. Usually this is done by the court but you can do it if it’s in advance in a well drafted Power of Attorney.
- As summer fades and school approaches please read our article on Why Your College Student Needs a Power of Attorney before they leave for school.
- For minor children. If both natural parents die or become incapacitated and they have minor children, a guardian will be appointed by a court for the children. However, parents can also appoint a guardian for minor children in their will.
In this article we will examine the issue of Guardians for Minors. When one parent dies or is unable to act and there are minor children, the surviving natural parent is the guardian of the children. If you die leaving children from a previous relationship, unless that parent’s custodial rights have been terminated by a court that parent will probably be appointed the guardian of the children.
It is so important for you to indicate by will who you would want to act as your children’s and your guardian. Without this vital designation, the court will decide.
How to Appoint a Guardian
-For Your Minor Children-
If you have minor children, you should nominate a guardian for them and yourself in your will. Remember the other parent may not survive you. If neither natural parent of minor children survives or is available, the courts will appoint a guardian. Although the courts are not required to appoint the person you nominate in your will as guardian, they place great weight on the parent’s selection. Make sure you do this.
Who Should You Choose as a Guardian
In naming a guardian for yourself (under a power of attorney) and your children (under your will), there are several important points to keep in mind:
- The guardian should be a person who is well equipped to handle the situation from making important medical decisions to rearing children and or to providing a stable and nurturing home life for your children. Make sure the person you pick has the ability to take on these emotional situations and that they will be able to co- update with trustees managing your funds for your children.
- Will he or she be able to financially cope with the burden of additional children or the incapacitation of their loved one? It might be wise to provide assets through your will or life insurance to bear the expense of raising your children and care for incapacitation.
- You should try to select someone close to your age. Your parents may be excellent grandparents but they may not be able to follow through with the at time difficult job of being a Guardian (they may be in nursing home care at that time).
- Check with the person you want to name as guardian to make sure they are willing to take on the responsibility of being a Guardian. It may also be a good idea to have a backup Guardian so if at the time they are needed (which hopefully is NEVER) they are unable you have planned a backup.
- Naming a husband and wife as co-guardians can get complicated. You do not want to place your children at risk of being fought over in a divorce custody battle. It is better to nominate the person you would want your children to reside with like your sister or brother and not that person’s spouse as well.
