What Is the Purpose of a Guardian?

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February 21, 2023 •  The Estate & Elder Law Center of Southside Virginia, PLLC
Few will argue that the most important time to have a will is when you are parents of young children.
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When you are nearing retirement or enjoying your golden years, most folks know you need a will to distribute your possessions and wealth accumulated during your lifetime. However, you also need a will when you are in the parenting phase of life, according to a recent article Why parents need a will to establish legal guardianship” from Wausau Pilot & Review. The future of your children depends upon your having a will and other legal documents in place!

As parents, you can name the person who will be your children’s guardian, if both parents die. Your will can also include information regarding who they should live with, who will be the Trustee managing any funds they will inherit, and who will raise them. It is not a pleasant thought, but without a will to name a guardian, children are at risk. Not only that, but families have also been torn apart when competing interests sue to gain guardianship over minor children.  

Naming the guardian can avoid your children being placed in temporary foster care until a judge decides who should raise them. Being with a trusted family member or friend during a catastrophic time in their lives would be far better than being cared for by people they do not know, no matter how well-meaning they may be. If one of the parents survives the other, the custody and care of the children remains with the surviving parent. However, if the children are under age 18 and both parents die, they need a legal guardian.  

Another aspect of this dilemma is when the parents are not married to each other. Now your children are your primary heirs, not a spouse, and the need for planning is critical. In the last few months, we have seen this happen and now, while the physical custody of the child remains with the surviving parent, since there was no will or trust established for the child, we will have to petition the Circuit Court to establish a Guardianship of the Estate of the minor. This can be expensive, time-consuming, and unnecessary!

In most cases, the court will honor a deceased parent’s request for the person named in the will, unless it is determined this person may not be the best person to serve as guardian. 

Parents can and do die at the same time, making proper estate planning and identifying a guardian especially important to have in place. The guardianship becomes legal with a court appointment after a court hearing, although laws and procedures do vary from state to state.  

Be careful when choosing a guardian. Make sure that the person is ready and able to serve. There is no obligation for someone to accept the appointment, so evaluate your choice carefully. Like your estate plan, this is not a one-and-done appointment. It should be reviewed every few years, as your children grow and their needs change.  

Consider these questions when figuring out who would be the best guardian: 

  • Does the person share your belief system in education or religion? 
  • Can the person raise your child until they reach legal age? Parents are often the first person we think of, but is a 68-year old grandparent with health issues capable of serving in this role, especially if the child is a toddler? 
  • Does the person live nearby, or will your children need to change schools, lose friends and leave the family home?

Guardianship needs to be integrated into the rest of your estate plan. For instance, if you have a life insurance policy, is the designated beneficiary your child? A minor cannot inherit assets, but a trust can. Your estate plan may include a trust to own funds and a trustee to manage them. Will that person be the same as the guardian? There are as many good reasons to divide the roles as there are to keep them separate. In most cases, an independent Trustee is best.  In our firm, Mr. Haley is a Master Certified Independent Trustee and has administered many Minor’s Trusts.  

Your estate planning attorney can help you and your spouse work through the issues based on your unique situation. The peace of mind you will feel in knowing your children will be cared for if the worst happens is well worth properly guided planning, time and effort. If you or a loved one are concerned about issues with situations like this, and in estate planning and elder law concerns including Asset Protection/Medicaid Planning and questions regarding long-term care and the nursing home, reach out to us!  Book a call with us on our website: www.VAElderLaw.com to get started. We have offices in BassettDanville and Lynchburg to serve you.

 Reference: Wausau Pilot & Review (Oct. 23, 2022) “Why parents need a will to establish legal guardianship” 

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