What is... Guardianship?
This is part of an on-going series of blog posts titled the "What Is..." series, where we attempt to explain, in simple terms, common estate planning terms and concepts. To read other posts in this series, click here.
Guardianship is a court proceeding where a court grants legal authority to someone other than a parent to care for a minor child. It’s legally appointing new parents for a minor child. This can mean taking care of the child day-to-day or it can mean taking care of the child’s finances; or, it can mean both. This typically needs to happen for orphaned children, but it sometimes happens when circumstances arise when parents are deemed unsuitable to care for their children.
Guardianship nominations are typically made in your will. When we talk about guardianship with our clients, we have a discussion surrounding who will take care of their children when they pass away or are permanently incapacited. Guardians can be family members, relatives, or even someone unrelated. They must be an adult, and must meet the court’s satisfaction to be suitable as a legal guardian, as determined by what is in the best interest of the child.
Some common issues to address when nominating guardians for minor children are the following: Is your preferred guardian a married couple? Do you want to nominate both spouses in the couple? What if they divorce, is there a preferred guardian? Are you nominating a guardian that would require your child to be uprooted from her/his life? Are you nominating someone who has the resources—both financial and time—to dedicate to your child?
Biological parents have first dibs on guardianship. And a court is most likely to grant guardianship to the biological parent, unless there is a reason not to do so.
In the case of a blended family, this would mean that the children of dad and ex-wife would go to ex-wife before they go to stepmom.
In the case of parents who are unmarried (and never were married), the child would go to the living parent, regardless of marital status.
Guardianship is why any parent needs a will (in addition to a trust). It’s an important decision, and you need to document your choice so that it can speak when you are unable to. Do not leave it up to chance.