Appointment of Guardian for Children in Last Will and Testament

One of the primary reasons couples with young children contact us to prepare their wills is to appoint a guardian for their children should something happen to them. There are other reasons that a will and/or trusts may be beneficial, but the care of the children is often what causes them to act.

A guardian for a minor child is a person responsible for care, welfare, education and support of a child and their property. Parents are the joint natural guardians of their minor children and are equally and jointly charged with their care. If either parent dies or is incapable of acting as guardian, the other parent becomes solely responsible by law.

Parents are responsible for the support of their children until after the child turns eighteen (18) if the child is in high school. This responsibility continues until the child (or his high school class) graduates.

If the parents of a minor child are divorced, the court will determine the legal custody of the child and may award guardianship of the property of the minor child to the parent it determines will best serve the welfare of the minor child and their estate.

If the parents are deceased, become disabled or other circumstances arise it may be necessary for the court to appoint a legal guardian for a minor child or children. If a guardian is required, the court may appoint any person whose appointment would be in the best interest of the minor. With this in mind, the court shall consider the following persons in the order listed for appointment of the guardian: (1) The person or persons designated by the parent or parents in a will or other written document; (2) Adult siblings of the minor; (3) Closest relative or relatives of the minor; and (4) other person or persons.

Although guardianship may be established through another written document, such as a power of attorney for appointment of a legal guardian, it is most often accomplished through the preparation and execution of a last will and testament by both parents. This ensures that the person that they are most comfortable raising their children will be appointed by the court. At the same time, most clients choose to include testamentary trust provisions to protect their children’s property should something happen to them.

If you have any questions about the appointment of a guardian for your children, please contact us.