What’s the Big Deal about Guardianship?

Most parents know that it’s important to choose someone to take care of your kids if something were to happen to you and you were no longer around to raise your children.  Yet, too many parents don’t understand why it’s important to legally document your choice of guardian, why no child should ever be without a guardian for any period of time, and the steps you can take to ensure your child has a trusted guardian under any circumstance.

What Is a Legal Guardian?

In order to appreciate the significance of guardianship, it’s helpful to understand its legal underpinnings.  Because children under the age of 18 are considered minors and not capable of taking care of themselves, they must always be under the care of a legal guardian.  The guardian has both the ability to make decisions for the child and the responsibility to financially support the child.

There are certain actions only a legal guardian is authorized to take on behalf of a child, such as enrolling a child in school and authorizing medical treatment.

Who Is a Child’s Legal Guardian?

When a child’s biological parents are alive and are able to care for the child, the parents are automatically deemed to be the child’s guardians unless their parental rights are terminated by a court.

If a child’s parents pass away or are otherwise unable to care for their child, the child may temporarily be without a guardian until one is appointed by a court.  This is true even if you have designated a guardian in your will, since there is a gap between a person’s death and the time that a court probates a will and appoints a guardian.

What Happens If a Child Has No Guardian?

If the child has no guardian, the authorities may take the child into state custody, with the state being named as the child’s legal guardian.  The child may remain in state custody until a guardian is named.  This is why you never want your child to be without a legal guardian.

What Steps Can I Take to Make Sure My Child Always Has a Trusted Legal Guardian?

There are a few things you can do to ensure your child is in the care of a guardian you trust.

  • First, make sure you have a will that designates the person you would choose to care for your children in the event that you and the child’s other parent pass away.
  • Second, talk to the individual(s) you’ve chosen so that they’re on alert and know what steps to take in the event you pass away and your child is in need of a guardian. Giving your guardians a heads up beforehand can prevent delays in petitioning the court to make the guardianship appointment.
  • Third, execute a standby guardianship document. A standby guardianship document authorizes someone to take legal custody of your children in the event you are incapacitated, for example, if you were in an accident and unconscious in the hospital.  It also allows a chosen guardian to take custody of your children immediately if you should pass away, rather than having to wait until your will is probated and a court makes a formal guardianship appointment.

Planning for the guardianship of a child if both parents die is one of the most important responsibilities parents have.  Use these tips to make sure your child will be in the care of someone you trust, no matter what the circumstances.

If you’re not sure who to chose as the guardian for your child, check out our Six Tips for Choosing a Guardian.

About the Author

Shannon McNulty

Shannon McNulty is the founder of The Savvy Parents Group and a lawyer in New York City who provides legal planning for parents with young children. Shannon received her J.D. from Georgetown University Law Center and her LL.M. in Taxation from NYU School of Law. She has also earned her CERTIFIED FINANCIAL PLANNER(TM) designation. You can learn more about Shannon and her firm at www.mcnulty-law.com.

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