There is a lot of confusion surrounding the topic of how to appoint a legal guardian for a minor. In this article we’ll discuss what a legal guardian is and the ins and outs of appointing one.
Who will care for my children in the event of parent death?
Caring for minor children in the event of parental death is a topic that many young families may not think about.
What would happen to their children who are under the age of 18?
Who will care for them in the event of a death, illness, or accident severe enough to render you unable to care for your child?
This decision is of the utmost importance to the wellbeing of your child if this scenario were to befall your family. It is critical that this topic is discussed and considered. Unfortunately, few people want to think about this.
While it may be easier to put off steps to prepare for these scenarios, it is important to prepare in advance to ensure a plan is in place. It is one of the most important provisions you can make for your child in the event that something were to happen to you.
What is a Legal Guardian?
If there is still one surviving parent, the child will legally be under the guardianship of that parent. This is true even if the parents are divorced.
In the event that neither parent is living, a legal guardian is required to assume the responsibilities of the parents.
A person lawfully invested with the power, and charged with the obligation, of taking care of and managing the property & rightsCollins Dictionary of Law
of a person who, because of age, understanding, or self-control, is considered incapable of administering his or her own affairs.
Legal guardians can be grandparents, siblings, other relatives or friends of the family.
It’s up to the parent to decide who they think would be the best fit to care for their children in the event of their own death. This is not an easy decision. You may want to get some outside coaching and legal guidance as to how to choose as there are both legal, relational, and emotional ramifications to this decision.
What are the responsibilities of a legal guardian?
A legal guardian is someone who assumes the responsibilities of a parent in the event of the death of both parents of minor children.
The guardian is responsible to feed, clothe and provide shelter and education for the children until they become legal adults at 18 years of age. In most cases they will also assume the management of the inheritance for the child. This also includes making medical and financial decisions for the child including managing any money or assets that were inherited.
Being a legal guardian is an important role in a child’s life and something that should be given time and thought when accepting responsibility as the potential caregiver.
The guardian must be a legal adult, so it cannot be an older sibling who has not yet turned 18.
There can be co-guardians, meaning that there can be more than 1 person per child. You can also assign different guardians for different children if it is more fitting to the situation.
Choosing a Guardian for your Child
It may be difficult to agree with your spouse on when appointing a legal guardian. Involving the child in this discussion should be approached with much care and caution so as not to cause the child distress.
Once you have chosen a guardian you can always change your mind and select someone different in the future.
It is important to talk to the potential guardian about their selection. Most people who are asked have a positive reaction. However, some may be overwhelmed by the thought of such a large responsibility, in which case the person can choose to decline. There may also be a chance that they are not approved which is why it is good to have an alternate choice for backup.
There are a number of guardianship forms for Arizona parents on AZCourts.gov.
1. Best Interest of the Child
It is in the best interest of the child to choose a guardian who is caring and stable. The best-case scenario would be someone who the child already knows.
And someone who can keep their lives fairly consistent with what the child grew up with, such as their school and place of worship. This can help the children keep existing relationships intact and help with their emotional adjustment.
It is also important to choose someone you and the children trust. The less disruption to the child’s emotional stability, the better. Choosing someone they know and trust helps give this stability to the child during a very emotional time of losing their parents.
3. Financial Ability
Another thing to consider is if the potential guardian can afford to bring children into their life. This is especially true if they already have children of their own. As guardians, they will likely have the ability to use the assets left to the children to provide for their health, maintenance, education, and support. However, there may be restrictions placed by the court on how the children’s assets are used.
4. Love & Care
Talking to your children and spouse about who they would feel most comfortable with and take the child’s preference into consideration. The guardian should be some who can provide genuine love and care for the children.
5. Age & Health
The age and health of the guardian is also an important thing to consider. In some scenarios, it may make sense to name the grandparents of the children as guardians. However, you must consider if the grandparents will be up for the task of caring for minor children.
6. Lifestyle & Parenting Style
Another important thing to discuss with your spouse is what kind of care you would want your children to receive. Everyone has different parenting styles, so determining who would be the closest to the way you handle things is important. When choosing the guardian, talk to them about your lifestyle and especially how they will discipline your children.
7. Naming a Guardian Before one is Needed
There are various methods for naming someone to serve as Guardian before needed. When it becomes necessary, the person named as Guardian is typically appointed by a court. That is, unless there is found to be some reason that disqualifies that person from serving as Guardian. Listed below are several methods for appointing a Guardian before the situation arises:
- For a Minor. Parents of a minor child may name their choice of Guardian in their last will and testament and/or living trust.
- For an Adult Incapacitated Child. Parents of an adult incapacitated child also may indicate their choice of Guardian in their last will and testament and/or living trust.
- For an Adult Person. An adult person may choose someone else to serve as their Guardian in the case of future incapacity.
8. Disqualifying a Guardian
A court can disqualify a person from serving as Guardian for many reasons. A few of them include; if they are a minor or a person who lacks experience, education. Courts also consider if the potential guardian is incapable of managing the person or estate of the Proposed Ward.
A person cannot be appointed as Guardian if their conduct is deemed to be notoriously bad. It is presumed not to be in the best interest of the Proposed Ward if the proposed guardian has been convicted of:
- Any sexual offense
- Aggravated assault
- Injury to a child or to the elderly or a disabled person
- Abandoning or endangering a child
- A Terrorist threat
- Continuous violence against the family of the ward or incapacitated person
9. Contesting a Guardianship Proceeding
When a Proposed Guardian files an application, the Proposed Ward or any other Interested Person may contest the appointment of the Proposed Guardian. An application for guardianship may be contested based on claims that:
- The Proposed Ward is not incapacitated and does not need a Guardian,
- There is someone with higher priority to be appointed Guardian of the Proposed Ward,
- There are alternatives to guardianship or supports and services available that make appointment of a Guardian unnecessary, or
- The Proposed Guardian is disqualified from serving as Guardian for the Proposed Ward.
10. Order of Priority to Serve as Guardian
For Guardianship of a Minor. The order of priority for Guardian of a minor is as follows:
- A person named by the minor’s parents to be Guardian if both parents are deceased.
- Nearest ascendant. Those up the family tree from the child (the court decides if there are two equal ascendants based on the best interest of the child). Naturally, parents are the preferred Guardian of their own children, but extended family members will usually be considered next.
- Nearest of kin (the court decides if there are two equal kin based on the best interest of the child).
- If no relatives, the court decides based on the best interest of the child.
- If the minor is at least 12 years old, they can file a written statement requesting a specific person to be their Guardian. The court will appoint the minor’s choice of Guardian as long as the choice is in the minor’s best interest.
11. Guardian of an Incapacitated Adult.
The order of priority for Guardian of an incapacitated adult is as follows:
- A person designated by the Incapacitated Person in writing prior to becoming incapacitated.
- Incapacitated Person’s spouse.
- Nearest of kin (the court decides if there are two equal kin based on the best interest of the Proposed Ward).
- Person best qualified to serve as Guardian (the court decides if there are two equally qualified persons based on the best interest of the Proposed Ward).
- Before appointing a legal guardian, the court will consider the Proposed Ward’s preference and give due consideration to that preference.
It is important to be prepared for a tragic event like this to help ease the transition for your children and your family. If you put yourself in the shoes of both the children and the guardians it is easy to see why being prepared ahead of time can help ease transitions.
What should I do to prepare my family legally?
The best way to be prepared is to have a will or trust in place that will identify who the guardians of your minor children are going to be. This helps to make sure that your wishes are honored and it helps to prepare both the children and the future guardians for what they may face in the future.
What is the importance of having a written will?
It is important to have the information about who will be responsible for your children in a written will or trust. Everything must be in writing. Verbal contracts and not enough.
Also be sure to update the will or trust frequently, so your most current wishes are reflected in the document in place at the time of your incapacitation or death.
If you have a will or trust that identifies who that guardian is, this takes priority in court. You get to make decisions beforehand, so you can prevent any fighting in court after you’ve passed away.
With a will in place, the child can have a seamless transition through that difficult time of losing you as the parent. They will still grieve, but the transition for their care will be less stressful. They will be cared for in the place and by the people you planned to be the best fit for them.
What if I do not have a written will?
If you do not have the information in writing (dying intestate), the process of appointing a guardian is a bit more complicated.
Don’t assume that a relative will simply take over parenting responsibilities for your child. The court will need to consider who will be able to provide the most stable and nurturing environment for the child.
Family will be chosen first by the courts so if you want a friend to be the designated legal guardian, you must specifically designate this.
If no one has been chosen ahead of time, then the remaining family members are going to have to go to court to seek the guardianship of your minor child.
It will be up to the family members to argue why they are the best choice for the child versus another person.
This can turn into a contentious process with family members fighting over the custody of the child.
This is why it’s so important to make sure that you take care of that beforehand.
At Fowler St. Clair, we have seen some tragic situations and witnessed some difficult battles in the courtroom over guardianship.
Our goal is to help you avoid situations like these to make the transition smooth and less painful for everyone who is involved.