One of the key decisions families with minor children have to make when setting up an estate plan is who will serve as the guardian of those children if both parents die prior to the children reach 18 years old. The probability of a guardianship provision being enforced is rare, but not impossible. For that reason, it is essential that such a decision be made long before it can become an issue.
Guardianship can mean different things depending on who the ‘ward’ or person needing care is and why they need such care. For persons with mental or physical disabilities or who lack capacity to care for themselves, an interested party will typically petition the court to allow them to take control of another person’s life. Guardianship for minors differs on several fronts. First, it has an expiration date built in (when the minor turns 18). Second, depending on the type of guardianship sought, it can affect a minor’s entire life or just the assets they may have. Finally, the proof needed to establish guardianship is significantly less than a guardianship based on incapacity or disability.
A guardian of a minor may be appointed to care for the minor’s person, property or both. Guardianship of a person deals with the care of the actual minor. In most situations, the minor would live with the appointed guardian and the guardian would be responsible for ensuring the proper care of the child. Guardianship of property is specific to assets that are set aside for or owned by a minor child. This can include inherited property, gifts or other assets that require adult supervision. Guardians of property serve alongside the Surrogate’s Court as being responsible for the assets of the minor. On a minor’s 18th birthday, the assets become the direct property of the former minor.
The selection process for choosing a guardian can be fraught with familial issues, concerns about making the correct choice and anxiety about whether anyone can care for a child the way their parents can. As mentioned above, it is a rare occurrence when these provisions actually get enforced. When choosing a guardian, some factors to consider include the potential guardians values and beliefs and how they compare to your own; financial stability and responsibility; availability to care for a child; and if the guardian has their own children, whether the care of additional children would create an undue burden on your selected guardian.
It is not easy to think of someone other than yourself or your spouse/partner raising your child and many clients delay completing their estate planning work because of their anxiety over this issue. The alternative is relying on the state to name the right person as guardian without any guidance from the minor’s parents. It is far better to go through the small discomfort yourself than to leave your children with potentially greater issues if the wrong guardian is chosen.
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