There are multiple aspects to estate planning including titles to property, trust documents and more, but none of these documents can name a guardian for a child. This can be done in a Last Will and Testament. While this appointment is not binding on a probate court, there is a strong presumption to honor the parent’s wishes.
If the mother and father were to die in a common accident, if there is a single parent, or if the parents are divorced and the surviving parent has been found unfit and there is no provision for the appointment of a guardian a court will select a Guardian to care for any surviving children. The court’s appointment may be someone the parent would have found undesirable. If there is a surviving parent, that parent will have automatic guardianship, unless there has been a finding of unfitness.
Guardian of the Person and Guardian of the Estate
There can be the guardian of the person, in which the guardian looks after the child’s day to day well being and care. There can be a guardian of the estate, in which the guardian looks after the child’s financial matters, including management of the child’s inheritance. These duties can be delegated to a single person or separated between different guardians. Naming the same person as guardian of the person and the estate is simpler and less expensive, but there may be reasons to separate the duties. Appointment regarding both matters lasts until the child becomes an adult.
Parents Should Consult with a Prospective Guardian and with Each Other
A single guardian may be appointed or joint guardians to act at the same time. If a single guardian is chosen, an alternate guardian should also be named in the event the original guardian dies or becomes unable or unwilling to serve. It is best to consult with prospective guardians as there is no legal duty to accept the appointment.
Parents should consult with each other as well when naming guardians in their respective wills. While the will of the last surviving parent is likely to be controlling, if the parents have named different guardians, there may be a difficult, expensive and unsettling court challenge to that appointment. This can be avoided if the parents have agreed upon the appointment.
Choosing a Child’s Guardian
Appointing suitable guardians is critical. Legally, there are no defined standards as to suitability. There is no restriction regarding appointments as guardians. There are the emotional considerations involved regarding who will have care of the children, but there are practical matters as well. These include:
- Is the guardian’s home adequate from a space standpoint?
- Is the guardian in a financial position to look after the child or children?
- Is the guardian aware of any special needs or care required for the child or children, and capable of meeting those needs?
- How are the financial needs of the children to be met?
Financial Controls through a Testamentary Trust
Regarding a child’s financial needs, there are multiple methods to deal with this, such as giving the authority to the guardian of the estate and allowing that person to manage the child’s inheritance. Such appointment and authority ends when a child becomes eighteen. There is an alternative that has many advantages, in that it allows for financial distributions and control beyond the age of eighteen.
This alternative is a testamentary trust or a revocable living trust. Such a trust can address many more matters than just appointment of a guardian of the estate can. A living trust can provide for allowances and timed distributions that the parent feels are in the child’s best interest. Creation of such a trust is another aspect of providing for a child after a parent is gone.
David J. Shestokas - Mr. Shestokas is a former prosecutor & writes on the Constitution & legal issues for the Save America Foundation & Suite 101.
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