Guardianships:

Protection for Your Children

 

A Guardian is a legally appointed person (or persons) who has most of the same powers and responsibilities of a parent regarding a child’s support, care, education, health and welfare. A guardian makes many routine decisions about the child’s daily life.  Basically, a guardian acts in the place of a child’s parent, assuming many parental duties, when the parent is deceased or unable to take care of his/her children.

 

Parents need to not only name guardians to care for their minor children in the instance of death, but also have separate designations of guardians in the instance of the parental disability. This is accomplished through proper estate planning.

 

In the instance of my death, who will care for my minor children?

A Court will appoint a guardian for a child when both parents are deceased (in the instance of death of one parent, most often the surviving parent cares for the child, barring any “unfit” parent situation). A Will is the logical and most appropriate place to write your wishes regarding guardianship for your minor children in the instance of your death.

 

I have told my friends and family who I want to take care of my children, and  have named "Godparents" for my children.  Isn’t this enough?

No, this is not enough. In the instance of a parent’s death,  without clearly appointed guardians appointed in a Will, you are leaving the day-to-day care and wellbeing of your children to chance. Godparents are not automatically appointed by the Court.  Although a Probate and Family Court judge will look at the “best interests of the child”, that judge will decide who will be guardian of your child if you do not name a guardian in your Will. Therefore, even if you have no substantial assets, you still should have a Will if you have minor children to designate guardianship should you decease while children are minors.

 

You have a Will, but have you considered what happens if in the instance of your disability?

A Will is the proper place to write your Guardian designations—but a Will only works upon the death of the Will-maker. Therefore, parents of young children need more than just a Will to protect their family in the instance one or both parents are disabled, whether it be a temporary disability, or long-term/permanent disability. All parents of minor children should have stand-alone written designations of Guardians for their children to make certain they are with trusted and caring people should parents ever become disabled.

 

How many Guardians should I name?

Parents of young children especially, often name couples who are married to serve as joint guardians. This makes a great deal of sense in many instances, but the parents also need to consider what happens of those joint guardians do not remain married—who then will care for the children? This is addressed through thoughtful estate planning counseling. It is often appropriate to name a successor list of guardians—those who would be able to care for the children if the original guardian(s) were no longer able or willing to handle their duties.

 

Who is an appropriate Guardian?

The guardian must be someone the parent trusts and believes would provide the most suitable and loving home for their children. When choosing an appropriate guardian, the parent should consider the potential guardian’s relationship status, work/travel schedule, habits and lifestyle. The guardian of the children does not need to be the same as the person who will handle the finances for the children. When selecting a guardian, many parents choose to separate the day-to-day parental duties from the maintenance and administration of the children’s finances. This is addressed through comprehensive attorney counseling and guidance.