What does a guardian of minor children do, and when should a Will nominate one?
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UPDATED: Jul 15, 2021
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There are two kinds of Guardians for minor children: A Guardian of the Person and a Guardian of the Estate. The Guardian of the Person is responsible for decisions regarding the health, education, and welfare of the minor child. This person is the caretaker of the child or makes sure that the child is taken care of physically and emotionally. The guardian of the Estate is responsible for the child’s property and for handling all financial matters for the minor child. One person may fill both these roles, particularly if the child’s estate is not large. If a minor child has a large estate, it may be best to nominate a Guardian of the Estate who is competent to handle large amounts of money. If two people fill the roles of Guardian, there will be extra effort and expense, since the Guardian of the Person will have to apply to the Guardian of the Estate for support of the child. With a large estate this extra expense may be worthwhile.
A parent’s Will should always nominate at least one Guardian while the children are minors. When one parent dies, the other parent will generally be appointed as the Guardian for a minor child, whether or not the parents were married at the time of the child’s birth or at the time of the custodial parent’s death. If someone besides the other parent of a minor child is nominated as Guardian in the custodial parent’s Will, the remaining parent can contest the nomination. It is then necessary for the court to determine if the appointment of the other parent as the guardian would be detrimental to the best interests of the minor child (which is a very difficult thing to establish in court). If you feel your child’s other parent is not fit, it’s worth putting that in your Will, to alert the court to a possible danger to your child. While it is very difficult to prevent a child’s other parent from becoming a Guardian, an appointment of a Guardian by the custodial parent is often successful when the appointment is challenged by a grandparent or some other relative of the child. So if you would rather your best friend raise your child than your mother-in-law, you should nominate your friend as Guardian in your Will.
In the event of the deaths of both parents, it is even more important to nominate a Guardian for minor children. This will ensure that the children will be well cared for by someone the parents trust. Again, if the estate is large, the parents might want to name a different person as Guardian of the Estate. People with good child-rearing skills are not always skilled with money, and persons skilled with money are not always the best caretakers. Parents should select people very carefully for both roles.