Guardianship and Estate Planning

July 2017

When parents begin the process of estate planning, the tough question of “who should for my child/children if anything were to happen to me?” Usually, this question of guardianship is what prompts parents to look into estate planning in the first place.

A guardian is a court appointed representative who has the legal authority to give custodial care to a minor.  In most instances, a surviving parent continues the role of guardian for minor children. However, if neither spouse survives, or if neither is able to act, the court must appoint a guardian, which is why it is extremely important to nominate a guardian in a will. If not, the court will attempt to make the appointment in the best interests of the children, however, the party appointed may not be one’s first choice.

The selection of the potential guardian can be a very difficult decision and one that should be made with careful consideration.  There are several factors to consider when choosing a guardian, including age, values, temperament, maturity, spirituality, the relationship with the children, integrity, stability, willingness to serve and health, for example. Logistical considerations may also be a factor; selecting a local guardian, or one who is willing to relocate may be important for those who do not want their children to have to change residences, schools, or churches, for example.

Finally, it is extremely important to revise the guardian nomination in a will should circumstances change where a more viable candidate should be named.

If you have questions about naming a guarding in your Will, our Estate Planning attorneys are happy to answer those questions for you.

This post was written by Trusts & Estates attorneys David Ness.  If you have any questions or would like to discuss your estate planning options, contact David at david.ness@fmjlaw.com.