Nominating Guardians to Care for Minor Children After Parents Pass Away
There are many reasons why people decide to have an estate plan prepared. They may be motivated by a desire to avoid probate, a desire to see control of the family business passed down to a capable successor, or a desire to establish trusts for their beneficiaries. But for many of the young families I work with, there is a motivation that takes priority above everything else: a desire to designate guardians who will care for their minor children in the event both parents pass away.
Most people agree that individuals under the age of eighteen require the help of an adult to get through those early years. The law expresses that same opinion, saying that minors are “legally incompetent to transact business or give consent for most purposes” and “not able to act effectively on their own behalf[s].” As a result, minors need a guardian to exercise the minor’s rights, to take responsibility for the minor’s personal welfare, and to make decisions on the minor’s behalf. By default, a minor’s parents are the “natural guardians” of the minor. But what happens if the minor’s parents pass away before the minor reaches adulthood?
If a minor child’s parents are no longer living, it will be necessary for the court to appoint some other responsible adult to act as the minor’s guardian. But who? Technically, any person may apply to be appointed as guardian for a minor whose parents have died, and the court will grant such an application if it finds doing so to be in the minor’s best interest. However, most parents would prefer to have some say in who gets to take responsibility for their children rather than leaving it all up to chance. Thankfully, some basic estate planning makes this possible.
Parents of minor children can include a provision in their wills that nominates a guardian for their minor children in the event all natural guardians have passed away. While the court isn’t required to follow the parents’ recommendation, they almost always do. The law says that “parents are presumed to know the best interest of their children” and so “such recommendation shall be a strong guide for the [court] in appointing a guardian.” A court would only override a parent’s recommendation if doing so were clearly in the minor child’s best interest.
Once appointed, a guardian “shall make provisions for the [child’s] care, comfort, and maintenance, and shall, as appropriate to the [child’s] needs, arrange for the [child’s] training, education, employment,” and shall “establish the [child’s] place of abode.” The guardian may also “give any consent or approval that may be necessary to enable the [child] to receive medical […] or other professional care.” With respect to the child’s assets (including assets the child will inherit from his or her deceased parents), the guardian will “[have] the power to perform in a reasonable and prudent manner every act that a reasonable and prudent person would perform incident to the collection, preservation, management, and use of the [child’s] estate to accomplish the desired result of administering the [child’s] estate legally and in the [child’s] best interest […].” Given the massive scope of the guardian’s responsibilities, it should come as no surprise that so many parents of young children cite the nomination of a guardian as their primary reason for having their estates planned.
Being a guardian is a big job, and deciding who to name as a potential guardian for your children can be difficult. But this is precisely why parents should take the opportunity to make the decision themselves rather than leaving it up to the court to decide. No one else knows the minor child like the parents, and no one else will consider all of the relevant factors in quite the same way. Sure, it is unpleasant to think about predeceasing your young children, but there is tremendous peace of mind in knowing that your children would be raised by the people of your choosing if the worst were to ever happen.
If you’d like to have a conversation about guardianship and other ways to provide for your children in your estate plan, I invite you to give me a call or send an email. Consultations are free and can be conducted in person, via Zoom, and even outside of normal business hours to better accommodate the needs of families with young children.
The information contained in this blog post is intended only as general legal information and should not be construed as formal legal advice on any matter, nor should its presentation be construed as intent on the part of The Law Office of Ryan A. Layton, PLLC to form an attorney-client relationship with any user of this website. For more information, please see this disclaimer.