Establishing a Guardianship for Minors can be a Vital Part of any Estate Plan
It’s important not to confuse guardianship with being a caretaker. In this article we are referring to guardianship for the care of minors before they reach 18 years of age as well as situations where an adult may be mentally incapacitated. For Minors, a guardianship can be a temporary arrangement that establishes someone other than the parent(s) as legal custodian of a child (children). Parental rights are not terminated and custody is returned to the parent as needed. For example if you are a single parent in the Armed Forces, you may want to establish your mother, the grandmother of your children, as guardian while you are deployed.
Who will Care for the Minor Child?
In the sad event that both parents pass away without an estate plan, the court has to take responsibility for the well-being of any surviving children. Generally a relative can and usually will petition to be appointed as a guardian for the minor child, but the process does take time to finalize.
The court will have to decide who can best care for the child and will be able to meet the emotional, physical and financial needs of the minor child.
If multiple family members petition the court for guardianship, the court will need to rank and select from among the petitioners. This can lead to arguments and fighting among the guardian candidates and extended family members. Your mother (the grandmother) could want custody and end up arguing against your sibling over who can best care for the child.
Secondly, the legal costs for arguing for guardianship will be compounded by the costs of a legal representative appointed by the courts to ensure the minors interests are protected. A better option is to make sure you have thought about this catastrophic event and make arrangements just in case.
Establishing clearly in your estate plan who you want to care for your child /children should you die prematurely, is a responsible act. Having it as part of an estate plan can help your surviving family members understand your wishes, allowing them to work together in support of the minor children rather than fight over how decisions should be made or what is best for the children.