Do you have children who are minors?
If you answered yes, have you ever thought about who would ultimately be responsible to care for your child if something bad were to happen to you?
It turns out that most parents have considered this, but are unsure where exactly to turn to when it comes to a solution. Well, we’re happy to report that there are solutions.
Executing a legally binding guardianship nomination is a great start in the right direction toward ensuring the safety and well-being of your children in the event that the worst happens to you.
What exactly is a guardian?
You may not be familiar with the term ‘guardian’, and not to worry. A guardian can be considered as a substitute parent. For as long as the ward (the minor child is called a ward of the guardian) is under the age of majority—age 18—the guardian has the same rights and duties as any legal parent would.
A parent is a so-called “natural guardian” of minor children. Natural guardianship is a personal right to the custody of a child until the child reaches the age of majority. But only a parent can be the “natural guardian” of a minor child. For anyone other than the parent, a guardian must be legally appointed by a court of law.
What is a Guardianship Nomination?
Next, you might be wondering, how do I ensure that the right person or people fill this important role for my children in the event I am no longer here to care for them myself?
For starters, you must execute a guardianship nomination. This is a written legal document that nominates successor guardians that also meets the requirements of the law in the state where you reside. For example, most states require that the document be witnessed and/or notarized to be legally binding. That means any verbal statements to loved ones about your wishes, or even a letter written by you containing your desires of guardianship are not sufficient.
In other words, a judge could appoint someone you never intended to be the guardian of your children in the absence of a legally-binding guardianship nomination document. Every family with minor children should consider nominating guardians as soon as possible.
What else should you consider?
When you name guardians for your children, it is customary but not legally required, that you ask the guardians if they would be willing to serve. It’s also good practice to name contingent successors in the unfortunate circumstance that your first-choice guardians are also deceased, ill, or have other life situations which will make it impossible for them to raise your children.
If you end up choosing a couple, a husband and wife, to become the substitute parents for your children, it’s important to address the possibility the couple splitting up and divorcing. In the case of separation, should one of them be the sole guardian of your children or should it move to the next in the line of succession? These are often overlooked situations.
What is a conservator?
A similar role that you can specify in a properly written and executed nomination document naming what is known as a conservator. Conservators are very similar to guardians, except that a conservator’s role is to properly safeguard and use money or other assets that were left to the child when a parent passes away.
As in the case of a guardian, a conservator acts in this capacity until a child reaches age 18. You may name the same individuals as both guardians and conservators or you may name different individuals to serve in those distinct roles.
Getting started with nominating a guardian
Guardianship nominations are overlooked by most parents for many reasons – not fully understanding the process of appointing guardians, not knowing where to even begin, and even not wanting to think about the absolute worst case.
However, whatever you do, it’s important to avoid waiting any longer to name a guardian for your minor children to avoid the unfortunate circumstance that something happens to you before you have a chance to prepare.
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