Guardian Nominations in Wills: Protecting Your Minor Children
Written by Patrick J. McDermott
Guardianship nominations are sometimes an overlooked provision in estate planning documents; however, these provisions should remain updated much like any other part of the estate planning process. Ultimately, a court proceeding will have to be opened for the court to appoint a guardian to act for minor children if the parents are not living, as a matter of public policy. However, as the parent, you can have valuable input by including a guardianship nomination in your Will. Of course, if the other parent is still then living and parental rights were not terminated, no other legal guardian is generally required.
If neither parent is living, people presume that a court will give weight to family members’ recounting the deceased parent’s verbal or informally written wishes, but this could turn out not to be the case. Under Arizona Law, courts are to give deference to the Will of the deceased parent; but only if it includes a guardianship designation. Without this designation, the court will not have the benefit of your legal input as part of the ongoing court process. In addition to having a nomination in the Will, you should also keep in mind the following:
First, it is helpful to name at least one alternate guardian when you make Will guardianship designations. Many parents choose a grandparent when making these designations. While that may be a fine choice at the time the designation was made, age should be considered because a grandparent may not be able to care for a child when it is needed. Even when age is not an issue, outside circumstances may mean that the family member or trusted friend who is the first nominated guardian may not be in a position to care for the child when that time comes.
Second, nominating someone who is good with finances is important, but choosing the proper guardian centers around who best could act and make care decisions for your minor child. The person nominated to act as guardian does not necessarily need to be the person handling the monies your child would inherit. There could be another trusted person involved as the minor’s court-appointed conservator, or, ideally, as a Trustee nominated under your Will or Trust. While a guardian will be responsible for arranging the child’s care and day-to-day expenditures, a conservator or Trustee will have the ultimate control for managing the child’s financial assets.
We recommend you review these provisions in your Will at least once a year. Here are times when it may be necessary to update your guardianship designation in your Will:
• Birth of a Child. Whether it is your first or your fifth child, it is always good to check-in with your guardian designee to ensure that they are willing to serve if that time ever comes to pass.
• Change in Circumstances. If your guardian designee moves out of state or has significant familial changes, you may wish to make changes. Or, sometimes your relationship with the designated guardian may have changed drastically and you are shocked to realize that person is listed for the care of your child.
• Death or Disability. If a guardian designee becomes unable to care for your child due to death or disability, you should update who you have designated as a guardian under your Will.