Choosing a Guardian for Your Minor Child or ChildrenPosted by William on Apr 14, 2012 in Estate Planning, News | 0 comments
Selection of a guardian to assume responsibility for the personal care of a minor child or children is one of the most important and difficult decisions a parent has to make. There are two types of guardianships, guardian of the person and guardian of the estate. A guardian of the person assumes the authority and responsibility for the care, custody, control, and education of the child (Cal. Prob. Code § 2351(a)). And importantly, the guardian assumes role of parent providing love and attention to the child. A guardian of the estate has the responsibility for managing control of the property of the minor. This role is subject to ongoing court oversight. Many parents prefer a trust to manage the assets of a minor child rather than a guardian of the estate. The trust can operate more efficiently and does not have the costs of the required court supervision. Further, all property managed by the guardian of the estate is distributed to the minor when they attain the age of 18. Some individuals may not be able to handle the responsibility of the assets. In a trust, the distributions can be controlled even after the minor reaches the age of majority. For example, the trust may provide that 1/3 of the assets are distributed when the minor reaches the age of 18, 25, and 30.
Nomination of a guardian of the person should be made because it avoids intra-family disputes. A number of factors must be considered. The guardian typically should be someone who the child has had close and regular contact. The death of a parents or parents is a traumatic event and someone the child already has a close relationship with could help to provide stability. Another crucial factor is age of the guardian. The guardian will be legally responsible for raising the child up until the age of 18. The calculation should involve considering the age of the guardian and then adding the number of years when the child will reach the age of majority. A grandparent who is 65 and a minor who is 3, means that the child will be in that persons custody until the age 80. This situation would be less worrisome if the minor child was 15 and would only live with the grandparent for three years.
Many parents chose to name a guardian who is around the same age as the parents, typically married and perhaps even with children of their own. However, there can be many issues in this situation. First, do the guardians have the financial ability to raise another child or children? What is the state of the guardian’s marriage? These questions are often hard to answer. Things are not always as they appear, and one could imagine the awkwardness of even broaching the above mentioned issues. Further, if a guardian has children the money distributed to the minor child from the trust could breed resentment from the other children. Not all situations can be completely avoided however, a good estate plan that includes a designation of a guardian for a minor should at least consider theses possibilities and try to minimize their effects. Whomever is named as a guardian, the parents must continually reevaluate their choice because some considerations may change. People get divorced, people move, and relationships change.