Guardianship In Estate Planning

By Althaus Law
July 14, 2021

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Guardianship and How it Relates to You

Estate planning allows you to ensure you’ve provided your family with as much guidance as possible for taking care of things once you’re gone. If you have minor children in your care, that includes planning for what would happen to them if they are still kids when you pass away. One way to plan for your kids’ care is to pick a person you would like to take over for you in raising them if you can no longer do so. That person is called a guardian, and it would be their job to then act as the parent for your children. That includes housing, feeding, seeing to their education, and raising them if you cannot. Being able to have a say in who takes on that role is invaluable and relatively simple to do.

Why Guardianship is Needed

There are a few situations that call for the appointment of a guardian:

  1. Child’s parents consent to the appointment of a guardian.
  2. Parental rights are terminated, leaving the child without someone acting in that parental role.
  3. The parents are unwilling or unable to exercise their parental rights; for example, if the parents pass away or become incapacitated.
  4. Guardianship had already been granted but that guardian passed away or there is otherwise no current acting guardian.

Guide to Guardianship

A. How to Establish a Guardian

To make sure you are prepared for any of these instances where a court would find guardianship necessary, you can nominate who you would like to act in that role if ever needed. To do so, you should include a guardianship clause in your Last Will and Testament. This clause can list, not only who you would like to act as guardian for your children if you can no longer care for them, but also any back-ups you would like to take on that role if the first person listed cannot. It is important to list these back-ups because we never know what the future holds, and even if the person you list first is willing and able when you draft your will, they may be unavailable if the time actually comes for them to take on that role. For example, if the person you have listed passes away before you, whoever you list as a second option can then be appointed. If you have not listed a back-up, you end up back in square one. Listing back-ups, then, gives you the chance to plan for many scenarios.

B. What if You Do Not Want Someone as Guardian?

There is also the possibility that you have someone you absolutely do not want to serve as your child’s guardian. If that is the case, you can create what is called a confidential exclusion document. This is where you say who you do not want to be your child’s guardian and why, being as specific and detailed as possible. If the time comes and someone has to be appointed as your child’s guardian, your personal representative can let that person know that you have this confidential exclusion in place to prevent them from putting themselves forth as a possible guardian. Hopefully, that is enough to dissuade that person from fighting for guardianship but if it is not, your personal representative can present the confidential exclusion to the court to persuade the judge not to choose that person.

C. Couples as Guardian

Many people have a couple that they would choose to serve as guardians together. It is possible to list co-guardians, or two people to serve as guardian at one time, but you want to be precise about the scenarios in which those two people would serve together. For example, say you have two really good friends, Joe and Emily, who are married, and you would like them both to be co-guardians, but you really only want them to be guardians if they are working together. Meaning, you wouldn’t want just Emily to do it if Joe couldn’t help for whatever reason, or vise versa. If you just nominate them to serve as co-guardians with no additional stipulation, you can run into situations where one is no longer there and the other is still allowed to serve as guardian alone. For example, one of them might predecease you, leaving one of them to serve as Guardian alone. Therefore, if Emily passed away before the guardianship was necessary, Joe would still be nominated to serve on his own as guardian. There is also the possibility that Joe and Emily get a divorce. If you just list them as co-guardians, and they get divorced, they would still be able to serve together as co-guardians. To avoid any of those possible scenarios you can specify “Joe and Emily as co-guardians, only if they remain married” or something similar. Then you can list who you would like to serve in that role if they are no longer married—those back-ups.

D. Court Hearing

Appointing a Guardian still requires a court hearing, even if you have named who you would like to be your child’s Guardian in your will. This is so that the judge has an opportunity to make sure that, at the time the Guardianship would be established, the child’s best interest would be served by appointing the person you have listed. To make that decision, a judge will do a background check on the person you’ve listed as well as check their credit score to find out if, on paper, they could be a good fit. The judge also considers the opinion of the minor in question, if the minor is fourteen or older. Finally, the judge considers the opinion of the parents, which is why a guardianship clause in your will is so important. That judge is going to put a lot of weight behind your wishes in your will and will likely appoint that person if everything checks out. If you do not nominate someone to serve as your child’s guardian in your will, the judge still has to make that decision but will be doing so without any help from you as to who you would trust to take care of your child in your place.

How Althaus Law Can Assist You

Deciding who you want to raise your children for you if you no longer can is a difficult decision, but it is certainly better be included in that decision-making process than leave it completely up to the courts. While you’re planning for taking care of them financially by leaving them certain assets after you pass, you should also plan for who will be housing, raising, and caring for them generally in your estate plan. Nominating a guardian in your will is another important aspect of estate planning that allows you to help take care of your family after you’re gone.

We are here to answer any questions you have regarding guardianship and securing your child’s future. Contact us at (720) 513-2299 or schedule a free initial consolation with one of our attorneys.