Nominating Legal Guardians

If an individual has children, it is very important to nominate a legal guardian or guardians who will care for them in the event that the individual becomes incapacitated or passes away. This is a very important task for any parent to complete, as it will provide peace of mind for their family knowing that their children will be cared for should anything happen to them.

What Is Legal Guardianship?

A legal guardian is an individual that a court or a will gives a legal responsibility to care for a child or an adult who cannot care for themselves. A legal guardian is typically responsible for the care of the ward, or child or incapable adult, and their financial affairs.

The guardian’s additional role of handling the ward’s financial affairs is typically referred to as conservatorship in law. Parent’s have the right to name a guardian for their children in the event that they pass away or cannot care for them for another reason.

Essentially, the legal guardian will become the child’s parent. This means they will be making decisions regarding their health, welfare, education, and other issues.

Legal guardians are governed by local and state laws. They are often required to prepare financial statements that show how they have managed the ward’s finances in the ward’s best interest.

The legal guardian of a child may be any individual who is at least 18 years of age. If, however, the individual who is nominated is not a relative, such as an immediate family member, grandparent, aunt, uncle, first cousin, great-grandparent, grand aunt or grand uncle, or half-brother, the Division of Family Services may need to assess the placement.

What Should I Consider When Choosing a Legal Guardian for My Children?

There are numerous issues that an individual should consider when they are choosing a legal guardian or guardians for their child or children. A legal guardian will be responsible for providing physically and emotionally for the child.

The legal guardian will have to create a healthy and safe living environment, provide an education as well as all of the necessary and appropriate medical treatment, including but not limited to medical, dental, and psychiatric care. The legal guardian will possibly be responsible for making decisions in other aspects of the child’s life, including, but not limited to:

• Education;
• Travel;
• Medical treatment;
• Right to marry or enlist in the military;
• Representation in legal matters;
• Welfare and upbringing; and
• Where the child will reside.

It is important to note that the biological parent’s parental rights will not be terminated when the non-parent is given guardianship. Because of that, the court may consider the following issues:

• How much, if any, contact the parent should have with the child after the guardianship is granted;
• How much, if any, information about the child the guardian is permitted t share with the parent;
• A visitation schedule, if appropriate, for the parent to spend time with the child;
• Will the child continue to have the right to inherit from their parent, and will the parent continue to have the right to inherit from the child; and
• If the guardian desires to have the child inherit from them, the guardian must state that desire in their will.

Whenever a court makes decisions on behalf of a child, they follow the child’s best interest standard. In most cases, this will mean following the wishes of the parents, even though it may require a review in certain situations.

Legal guardianship can provide parents an option to care for their children in their absence due to illness, incarceration, or death. It allows the parent to have a choice regarding the care of their child, even after they would be unable to express that choice themselves.

How Do I Nominate a Legal Guardian for My Children?

In most situations, a legal guardian is nominated in one of the following ways:

• They are appointed by a family law court;
• They are included in a legal instrument called a guardianship agreement; or
• They are named in an individual’s will or other estate planning document.

If, for example, a child’s parents are in a serious car accident that causes them to both be in a coma, the court may appoint a close family member to become the children’s temporary legal guardian. The court may also review the estate planning documents of the parents and designate the individual who is listed as the children’s legal guardian.

Depending on the circumstances of the situation, the legal guardian may be granted temporary, permanent, physical, or legal guardianship over the children. If both of the parents were to pass away at the same time, the court would refer to their estate planning documents and, whenever possible, nominate the individual listed therein.

It is important to note that every state has different laws and procedural requirements about establishing a valid legal guardianship.

Do I Need to Designate Alternative Legal Guardians?

It is important for an individual to designate alternative legal guardians for their children in case their first choice is not available for any reason. This will help ensure that continuous care is provided for their children and they have safety and stability.

When a court is considering whether or not to grant an individual legal guardianship over a child, the court may consider several factors, including:

• The financial stability and amount of time that the individual will realistically be able to dedicate to properly care for the child;
• Whether the individual has a criminal record, and, if so, whether or not their crimes involve those committed against children;
  • Even if they do not have a criminal record, the court may consider the individual’s moral character as well;
• The health and age of the prospective legal guardian, which can help determine whether they are physically healthy and mentally competent; and
• Whether the individual has an ulterior motive for petitioning to become the child’s legal guardian, such as a financial stake if they are appointed legal guardian.

Should I Notify the Legal Guardians I Choose?

Yes, it is very important that an individual notifies the legal guardians and alternate legal guardians that they choose for their children. It is important to confirm that these individuals are willing and able to step into the role.

This is important because they will be responsible for the physical and mental care of another individual’s child, which may seem overwhelming to some individuals. In some cases, an individual may not be financially able to raise another child.

The legal guardian may also be responsible for making certain types of reports to the court, as noted above. It is important to have open communication with family members or other loved ones who are chosen as guardians.

Should I Consult with a Professional When Choosing a Guardian?

Yes, it is important to consult with a professional when an individual is choosing a legal guardian for their children. An individual may want to consult with an attorney for assistance to ensure their documents are valid under the applicable state laws.

An individual may also want to consult with other professionals, such as a financial professional who can help an individual plan for their child’s future and provide financial assistance to potential guardians, if possible.

When Do I Need to Update My Guardian Choices?

It is important for an individual to update their guardian choices any time there are changes that may affect their choices. For example, if an individual’s first choice of guardian becomes incapacitated or unavailable, they will need to name a new first choice.

It is important to note that legal guardians may be removed if they do not carry out their duties. In addition, in most situations, guardians may resign if they provide notice to the court.

Should I Consult with a Lawyer?

If you are planning for your future and ensuring that your children’s future is the best it can be, you may want to consider nominating a legal guardian or guardians. It is important to consult with a family attorney to ensure that your choices are properly recorded in documents that are valid under your state laws.

Your attorney may also be able to explain the guardianship process and their potential responsibilities to your nominated legal guardians so that they can also make an informed decision regarding whether or not they can accept the position. Your lawyer will also keep you updated regarding any changes in the applicable laws that may affect your legal rights and options.