Appointing a Guardian for Minor Children
Written by Jason C. Henbest, Esq. and Brittany Saxton
Having children under 18 is a busy time for parents. Taking care of the day-to-day can sometimes be overwhelming in itself. However, it is important not to forget that a part of caring for your children is making sure that your children’s future interests are protected. A major component of your children’s future care is ensuring that they will be adequately cared for in the event of you or your partner’s death.
Parents can appoint a guardian—a substitute caretaker—of their minor children in a Will. This concern over the future care of minor children is the number one reason parents want and need to execute a Will. Without a Will, if both parents pass away the court has the authority to appoint a guardian. If only one parent passes away, custody of a child automatically passes to the surviving parent. Yet, the future care of your children is too big a choice to leave that up to uncertainty. Naming a guardian in a Will can be scary, knowing there is the potential that you may not be around for the entirety of your minor child’s life. However, as the natural guardian of your children, you have a personal right of custody until your children reach the age of majority. As long as a minor child is under 18 years old, the appointed guardian in your Will has the same expected duties of a natural guardian.
Appointing a guardian can also be a confusing process; the idea of leaving the welfare of your children to other individuals is troublesome. The best way to gain confidence in your decision is to approach the individual and ask if they would be willing to serve as physical guardian of the minor or as fiscal guardian of the minor’s estate. These are two separate roles, and the same individual can—but does not have to—perform both. It is vital to ask several people if they are willing to serve, so successors can be named in the Will in the event that the unexpected happens. In the event that your first choice is ill, deceased, or for some other reason incapable of fulfilling their roles, making sure you have successors alleviates the reliance on a single individual to perform the guardianship duties.
Appointing a guardian is a stressful and emotional process. But it is better to be prepared for the worst and ultimately hope for the best. Discuss your options with a qualified attorney who has experience with guardianship issues and can help you prepare for your children’s future.
Barnegat Township Lawyer | Guardian | Children