APPOINTING A GUARDIAN FOR YOUR CHILDREN
One of the essential reasons to prepare a Will is to appoint a guardian for your minor children. If both parents pass by accident or by unexpected illness, your Will clearly states who will take over the custody and care of your minor children (in Pennsylvania minority ends at age eighteen (18) years).
The guardian for your children is legally responsible for your child’s physical care, health, education, and welfare until your child reaches majority. The guardian is responsible for providing basic needs such as food, clothing, shelter, and for making medical decisions and decisions concerning your child’s education.
In cases where your child’s other parent survives, the surviving parent will assume the guardianship without the requirement of any special action. In other words, by law, the other parent is assumed to be the appropriate party. However, there are instances, for a variety of reasons, where you will need to provide for the possibility that the other parent may not be available to be your child’s natural guardian or may actually not be appropriate to be your child’s natural guardian.
In the event that a guardian is needed, the guardianship provision in your Will provides the court with guidance and affords you the opportunity to nominate the person who you want to serve as guardian for your minor child. If a court ever needs to intervene in order to appoint a guardian for your minor child, the judge will consider the person who was nominated by you in your Will, unless for some reason, evidence proves that the person named would not serve in the best interest of your child.
The guardian is not responsible to use his or her own money to meet your child’s financial needs. For this reason, it is common for a Will to create a Trust. Your Will can establish a testamentary trust (a trust created under a Will) for the management of assets, life insurance proceeds, and retirement account proceeds to be distributed on behalf of your child before a certain age and to be fully distributed to your child when he or she reaches the age that you choose. You may choose to establish a Trust separate from any created in your Will. No matter what your decision is regarding creating a Trust under your Will or creating a Trust separate from your Will, the guardian has the authority to use these assets for your child’s care during your child’s minority.
Unless your Will states otherwise, a guardian is not paid for his or her services.
Before nominating a guardian it is a good idea to ask the person or persons if they are willing to become your child’s guardian. It is important to discuss the role that they will play in your child’s life. Because a guardian is not legally obligated to serve and because the guardian whom you nominate may become unable to serve, it is wise to name an alternate choice. Remember, although state laws give high priority to the guardian nominated in a Will, your choice of a guardian is just a recommendation to the court. Typically, the court will honor your choice unless presented with some compelling evidence against that choice. However, if you do not name a guardian in your Will you open up that position to anyone who asks for it and the judge must decide, without the benefit of your opinion, which is best suited to raise your children. By naming a successor guardian, the court is provided with another choice for guardian in the event that the first guardian who you named is unavailable or unable to serve.
There are several factors to consider when naming a guardian: the guardian’s age, experience, whether or not they will have genuine concern and care for your children’s welfare and education, the nominated guardian’s physical health, time constraints, geographic location and whether or not the guardian shares your values.
These are important factors to think about and discuss with your spouse, your partner, anyone that you trust, and with your attorney.
DISCLAIMER: This information is not intended as legal advice and should not be construed as such.
Contact Us
Law Offices of Rise P. Newman, LLC
1515 Market Street
Suite 1520
Philadelphia, PA 19102
Tel: (215) 670-0055
Fax: (215) 557-0322
Rise P. Newman, Esq. E-Mail: rise@risenewmanlaw.com
Lisa A. Holland, Esq. E-Mail: lisa@risenewmanlaw.com
