You provide for every aspect of your child’s care. Have you thought about what will happen if a tragedy leaves them without you to care for them?
Planning to have our children become orphans is something that needs to be handled as soon after their birth as possible. If you die before they become an adult, you want to make sure their care comes from a person of your choosing.
Read on to find out what the role of legal guardians is, facts to consider in choosing a guardian, and how to make sure your selection meets legal requirements.
What Are Legal Guardians?
A legal guardian will provide care for your child should you die before the child becomes an adult. There are many factors to consider in making this choice, and what may seem logical at first may not be a good selection upon examining things further.
Duties of a Minor Child’s Legal Guardian
The person appointed to be your child’s legal guardian will be overseeing all aspects of their life until they become an adult. This includes:
- Providing basic needs such as food, education, clothing, personal items, housing
- Decisions regarding both routine and emergency medical treatment
- Managing any bank accounts, trusts, or financial inheritance the child has from your estate
- The child’s social and sports activities
How to Choose a Legal Guardian
Many people assume their parents or one of their siblings will take guardianship of their children. Family members are preferred by the courts, but there are times when a close friend may be a better choice. The first step is to make a list of possible candidates, and then evaluate each person using the following criteria:
- Do they have children of their own in the same age range?
- Do they live in the same geographic area you do?
- Who in the family will be the primary caregiver of your child?
- Are they financially secure?
- Are they healthy?
- Will their age affect their ability to parent an active child?
- Do they behave in a responsible manner?
- Do they have the same values as you—work ethic, integrity, academics, the arts, religion, etc.?
- Does that person genuinely care about your child’s welfare?
- Do they have the maturity, temperament, patience, stamina, and experience to care for your child on a full-time basis?
- Do they have the ability to understand the emotional issues a child will have upon the loss of their parents?
- Do they have integrity and stability?
- Are they able to care for all of your children, keeping them together in one family unit?
Once you have made your selection of the top 2-3, discuss your wishes with those persons. You may find they are happy to assume responsibility if needed. You may also learn that they have no desire to care for your child.
Two Guardians: One Physical and One Financial
One of the problems a parent faces in appointing a guardian for their child is that the person will also be managing the child’s entire inheritance. This can be a substantial amount of money that needs protection.
One way to do this is by appointing a custodial guardian for the minor children and a separate person as a financial guardian. The financial guardian will handle all monetary portions of the estate including:
- Keeping the child’s inherited property separate from their own personal assets
- Preserving and controlling the child’s inherited property until they reach 18 years of age
- Prevents a physical guardian from using the child’s inherited property for their own financial needs
If there is a fair amount of assets the children will inherit, this is an ideal solution because it provides oversight on the child’s inheritance.
A Stepparent Does Not Have Automatic Rights
You may be thinking that because you are remarried and your child lives with you and your new spouse, that the spouse would be an automatic guardian for the child. Unless legal provisions are in place they may not receive guardianship of the child.
A stepparent may desire guardianship, but other biological family members or the child’s other parent may object and a fight will pursue in court for guardianship.
Can I Prevent My Ex-Spouse From Getting Guardianship?
The law does not allow you to appoint someone as a guardian that will interfere with the other biological parent’s rights to custody. If you die the judge will grant custody to the other parent unless that parent has been found unfit or their parental rights terminated. If you have concerns about your ex-spouse’s ability to care for your child, place these written concerns in your will for the judge’s consideration.
If there is someone who you absolutely do not want to obtain guardianship of your children, the confidential exclusion can guarantee this does not happen. This is a document in which you name the person and explain in detail your reasons for believing them unfit to be the guardian of your child.
The document needs to be sealed into an envelope and given to a close friend or attorney for safeguarding. If following your death the person in the document attempts to receive guardianship, the person holding the document can show it to that person or the judge to have consideration given to your wishes.
Making Sure Your Selection Is Legal
Once you have made your selection of a guardian you need to make sure your wishes are legally documented. The paperwork can be drawn up by an experienced guardianship attorney. You may also list the guardianship in your will.
Whatever route you choose you need to make sure the rules of your state are followed and the guardianship directive is signed in front of a notary and witnesses.
Review Your Selection BI-Annually
You need to review your selections and make any necessary changes at least every two years. Circumstances change over time that may impact your decision and warrant a change including:
- Guardian is widowed, becomes terminally ill or dies
- Change in physical abilities of guardian
- Substance abuse
What If I Die Without Selecting a Guardian?
If you die without selecting a guardian for your child, the court will determine the child’s guardian. The judge may not select the person you believe to be the best choice for your child.
While there are many things you should do, there are also mistakes you can make when selecting a guardian. Avoid letting your decision be swayed by the following:
- Considering the potential person’s finances—your finances pay for the child, not the guardian’s
- Not naming alternative guardians—name your first selection and at least two backups
- Relying on an informal arrangement—without a written document designating your wishes it is all a matter of hearsay on who the judge selects
- Failing to review selections every two years
- Ignoring your kid’s choices—do not select a guardian your children do not like
- Not leaving a set of wishes for the new guardian—this will let the person you appoint what your wishes are for your children, such as religious upbringing, sports activities, college, etc.
Start the Process
Now is the perfect time to make sure you have legal guardians appointed for your minor children. The Elliot Frazier Law Firm can help you with all your family court needs, including guardianship. You can contact us online or call 864-256-3553 to schedule a consultation.
Angela Elliot Frazier is a Family Law Attorney who practices in Greenville, SC. She graduated from the University of South Carolina School of Law, and has been practicing law for 14 years now. Angela Frazier believes in helping you through one of the most stressful times of your life. Learn more about her experience by clicking here.