What is the Role of a Child’s Legal Guardian?

While many people don’t expect to pass away until they’re elderly, with their children grown and out of the house, this isn’t true for everyone. There are many instances where someone may pass away when their children are still minors and need a legal guardian to care for them.

If you’re a parent who is young and healthy, you should still have a will. Accidents happen, and you can end up leaving your children lost in the state’s foster care system or the hands of a family member you don’t trust.

To ensure your child is cared for, you can designate a legal guardian for them in a will or trust. To do this, you’ll need the help of an estate planning attorney, like those at The Law Offices of Diron Rutty, LLC. We can explain how you create a proper will, how to designate a legal guardian for your children, and what being a legal guardian entails.

What is a Legal Guardian?

Minor children are any children under the age of 18. Until they are 18, their parents have legal custody of them. If they are orphaned or removed from their parents’ care for their safety, they can become wards of the state unless there is someone to be their legal guardian.

A guardian, in the context of child custody, is someone who has legal and physical custody of a child. They are the child’s parent in the eyes of the law and have the responsibilities of a parent. They have to power to make decisions regarding the child’s:

• Education
• Healthcare
• Living arrangements
• Financial affairs, if applicable
• Emotional/mental/social needs

Why Do Minor Children Need a Legal Guardian?

Without a will, the state has to interpret your wishes for what to do with your responsibilities like they would your property. Since childcare is a much more complicated subject than handling physical property, there’s even more room for something to go wrong.

Without clear instructions, the court can only use experience and recommendations from social workers and/or family members to determine what is best for your children. There are a few risks that come with this.

• Your children can be placed with family members they don’t know. This can be something as benign as being with people they are not comfortable with to being placed with family you have personally avoided. For example, if you are no longer in contact with your parents (the children’s grandparents), they could become your children’s guardians. This may be in direct conflict with how you would want them to be raised.

• Your children are placed in the foster care system. Currently, the nation’s foster care system is far from ideal, with almost 30% of former foster care youths being homeless by 21 years of age, 20% being incarcerated by 21 years of age, and 25% having a child. Orphaned children are commonly put into the foster care system when they have no one to take them in after their parents’ deaths.

How Does Having a Designated Guardian Help?

By designating a guardian, you are handpicking someone to take care of your children. This makes sure that they are not sent into the foster care system.

If other family members want custody of your children instead of your appointed guardian, you can provide reasoning and evidence as to why your chosen guardian is your preferred choice in your will. This won’t stop others from filing for custody/guardianship, but it may help.

Courts are not likely to give custody of your children to someone you believe was a poor choice. They want to do what’s best for your child, and they have more reason to assume you know what is right for them than anyone else, even after you’re gone.

What to Remember When Designating Your Minor Child’s Legal Guardian

While the courts are likely to abide by your wishes, they are not going to take your word above their own if they have reason to disagree with your choices. There are specific factors they will consider before approving anyone for custody of your children.

For example, if they find that the person you chose is incapable of taking care of your children, they will not become their guardian. Aside from choosing someone the court will approve of, there are other factors to think of when deciding on a legal guardian, such as:

• Backup Guardians: There are many reasons why your first choice may not be approved or may no longer be able to care for your children. They could die before being awarded custody, they may have a change in their financial situation, or they may change their mind about becoming your children’s guardian. For this reason and many others, you should have several backup options whom you have communicated with beforehand.

• Details on How Children Should Be Raised: Even if your appointed guardian is already a parent, you need to list some specific details about how your children should be raised. This can be about long-standing subjects such as their religion or education, or something specific about how to handle aspects of your child’s personality.

• Specify Who You Don’t Want Raising Your Children: It cannot be understated how important and powerful it is to put in writing who you don’t want to raise your children. Make sure the court knows who you don’t trust to care for your children and why in great detail.

• Updating Your Will: You need to regularly update your will, especially the portion regarding who will care for your children. If you have a falling out, or your chosen guardian isn’t as capable as they were before, you need to make a change. Even if you believe that their situation will improve, you need to make a change in your will to account for this.

Contact the Estate Planning and Family Law Attorneys at The Law Offices of Diron Rutty, LLC

Choosing a legal guardian for your minor children is an action where estate planning law and family law intersect. When you have to plan for the potential tragedy of leaving your children before they’re ready, make sure you have legal help who understands both areas of law.

You can find that legal help at The Law Offices of Diron Rutty, LLC. Our attorneys are experienced with estate planning and family law. We even developed our online legal services with all of our practice areas in mind.

For more information, the online forms you need, or to schedule a consultation, contact us today.