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As a parent, it’s important to plan ahead and make sure your children are taken care of in the event of a ‘worst case scenario’ type of situation. While it may be hard to imagine what could happen to your children if you are no longer able to care for them due to death or incapacity, naming a guardian eases this worry by directing who will take over your role as caretaker.  Any parent should consider nominating a guardian for minor children as an essential part of their family’s estate planning.

What is a Guardian?

A guardian is someone who is an accountable adult to be responsible for an unemancipated minor to be responsible for his or her personal welfare,  personal decision-making, and to handle property or benefits to which the minor is entitled until the child reaches the age of 18. Parents are the natural guardians of their minor children. Legal Guardians possess the same responsibilities as natural parents and have a duty to act and make decisions based upon the best interests of the child. Guardians may also be given responsibility over the child’s finances and property depending on the parent’s wishes or court order.

Appointing a Guardian:

For parents with minor children, one of the most important provisions your Last Will and Testament is appointing a Guardian for your child or children.  A Testamentary guardian is the person recommended in a Will to serve as the guardian for a minor child after the parent’s death (in the absence of a surviving parent) until the child turns 18. As such, your Will is your opportunity to clearly make your wishes known, to both your family and the Court who you want to serve as guardian.

If you die without a Will or your Will does not designate a guardian, then the court must appoint a guardian of your minor child without your input.  The court will appoint a guardian for a minor based upon the “best interest of the child” standard but will strongly consider the recommended guardian named in the parent’s last will and testament. While generally the court will look to relatives, any person can apply to be guardian. This means a judge may potentially have to decide from a laundry list of people who will raise the child without being able to give consideration to the parents’ wishes.  If you prefer your friend Rebecca over your sister Kate to serve as guardian of your child, it is critical that you include this in a valid and enforceable Will. While not absolute, you should not underestimate the strong preference that Court will put on a parent’s recommended guardian for a minor child.  Naming a recommended guardian in your Will can avoid bitter and costly disputes between family members, where all sides may believe they are “following your wishes.”

Other Factors to Consider:

Deciding who will care for your children in the event of your death is probably one of the toughest decisions you’ll have to make as a parent because it determines how your children will be raised in your absence.  In doing so, you should always discuss your decision with the child’s other parent (if applicable) and the potential guardian.

• The guardian you name in your Will must also be willing to serve as guardian for your child, so it is advisable to get that person’s consent when naming them in your Will
• It is also important to consider naming an alternate guardian in your Will in case your first choice is unable  or unwilling to serve for any reason. Both provisions can easily be drafted into your will.
• Your estate plan should be laid out in a way that ensures your child’s financial well-being along with their general welfare. Often this involves naming a trustee to manage and distribute the assets you leave in trust for your child’s benefit.
• The trustee can be the same person you designate as guardian or someone different (ie. you may prefer to have a “checks and balances approach” by naming a different trustee from the guardian)
• While guardianship of a minor terminates at 18, you can choose to have the child’s trust continue for the child’s lifetime or a later age (such as 25 or 30) when hopefully he or she is more responsible to manage the assets on their own.

Discuss your Guardianship concerns with an Estate Planning Attorney

The intersection of guardianship laws and estate planning can be confusing and choosing the right guardian requires careful consideration.  Our experienced Fort Mill Estate planning attorneys offer a free consultation to help you map out a plan and prepare the necessary legal documents. Contact us to get started today.