Nominating a guardian for your child

If something happened to you, who would care for your child? Have you nominated a guardian in your will?

Kinds of parental rights

Parents have certain “parental rights” regarding their minor (under age 18)
children. These rights are exercised every day and can be described as “parental rights of
the person” and “parental rights of the estate.”

For example, parental rights of the person are exercised when you bring your
child to the pediatrician for a check up or the emergency room after he/she has fallen off
their bicycle and sign a consent form for medical treatment, when you allow your child to
attend a field trip or summer camp, to participate in Little League or organized soccer, join
the Scouts, and when you decide whether your child will attend
public school or private school.

Parental rights of the estate relate to property owned by the child. If your child received an inheritance, parental rights over the estate are exercised when you open a bank account in the child’s name or purchase shares of a mutual fund in an account set up in the name of your child.

Appointing a guardian

If the parents (natural or adopted) are incapacitated or unable to exercise
these rights on behalf of the child, a guardian must be appointed.

The need for a guardian can arise in several situations: A single parent who falls ill or passes away while the other natural parent is unwilling or unable to assume responsibility for the child, a non-traditional family (gay or straight) when the natural parent is incapacitated and the non-biological co-parent or domestic partner needs to act on behalf of the child or the simultaneous death of the parents in a car accident or other tragedy.

If the need for a guardian arises, a guardianship proceeding is undertaken in
court. The court decides who will be appointed as guardian of the person and of the
estate. If several persons want to be appointed, state law will dictate who is entitled to
priority. Each state differs, but as a general rule, courts will give great deference to the person designated by the parent.

Designate a guardian

Designating a guardian is most often done in a will. If you have a living trust, a separate will is executed with guardianship provisions. It is important to remember that while your will only designates your choice for guardian, it tells the court who you want to care for your children and acts as an important tool in helping the court appoint the guardian.

The task of appointing a guardian can be an emotionally loaded issue. It’s not fun to face our own mortality, nor is it simple to choose someone with whom you would like our children to be raised in the event of your demise. Uncomfortable as it may be, it’s worth taking the time and seeking qualified assistance to make this important addition to your will. Your child deserves your best efforts to ensure his or her future.


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