Naming a Guardian in Your Will
Maryland Attorney Estate Planning: Wills and Guardianships of Minor Children
If you have one or more children under the age of 18, you need a will that names a legal guardian or guardians in the event of your and the other parent's death. If you don't name a legal guardian before you die, the court will choose who will care for your children, with no input from you. If you need to create a will, prepare an estate plan, or update an existing will, contact the Law Offices of Gary W. Desper. I take a personal interest in each client and can prepare the documents you need to protect your family. Experienced attorney located in Westminster, Carroll County, Maryland. Affordable rates.
Choosing a Guardian
Naming a guardian in your Will ensures that you choose who would care for your children if you are no longer able to do so, not the courts. If you don't specify a legal guardian for your child in a will, you are leaving this extremely important decision entirely up to the legal system.
The court’s priority is always the best interest of the child. The nomination of a guardian by parents through their last will and testament often weighs heavily in the court’s determination. If this is not done through a will, the determination of a guardian may involve speaking with the individual who wishes to be guardian. The court may also call expert witnesses to testify as to which individuals may serve as the best guardian. If the child is of appropriate age, the child may also be asked about who he or she prefers to act as his or her guardian.
Family members or trusted friends are good options to consider when choosing your child's guardian. Co-guardians are also permissible in Maryland. You can name co-guardians, but doing so may create custody problems should the co-guardians separate in the future. The court will typically appoint two guardians when a parent or parents name a couple as co-guardians. For example, it is common for individuals to name their parents together or their brother and sister-in-law to serve as the co-guardians of a minor child.
If you currently have full custody, the courts could award custody to the surviving parent if you die. If this is something you don't want, you should plan for this ahead of time as well.
When drawing up your will, be sure that you and the other parent are on the same page regarding the legal guardian so you can include the same name, or names, in both of your wills to avoid later problems. Also, think about naming an alternate guardian should your original choice be incapable of taking on the responsibility for any reason.
Here are some things you should consideration when choosing a guardian:
- Can your chosen guardian handle the physical, financial, and emotional responsibilities of raising your child?
- What kind of parent they would be? Are they kind, mature, nurturing, patient, responsible, supportive?
- How well do they know your children? Do they already get along with them?
- How old is your chosen guardian? Many people immediately think of their own parents for guardians of their children. Before doing this, consider the age and general health of your chosen guardian. Will he or she be able to handle the physical demands of raising children? If your children are close to 18 or 21 years old, this may not be as much of a concern. If you have younger children, this could be a very important consideration.
- Where is your chosen guardian located? Are they in the same state or town as you? How far away are other members of your family and the important people in your children's lives? Will your children have to deal with moving to a new location in addition to losing their parent(s)?
- Where will the children live? Will the children move in with the chosen guardian or will the guardian move into your current home?
- How many minor children do you have? Name each one individually in your will. You can't assume the court will automatically grant custody of all your children to the same legal guardian, especially if you have a child with special needs.
- Do you want all of your children to live together? If you want your children to stay together, you need to specify this in your will. If this more important to you than who becomes their legal guardian, make this clear in your will. This way, if for some reason the court does not approve your choice of guardian or your chosen guardian cannot serve, your children can stay together with a different guardian as named by the court.
- Can your chosen guardian handle all of your children? Especially if you prefer your children to stay together, is your chosen guardian in the position to care for all of your children, emotionally, financially, and physically? Does he or she have other children as well? How well do the families blend?
- Should you consider naming co-guardians? If you prefer to have your children raised in a two-person home, be sure to name each member of the couple as a co-guardian. For example, if you would like your brother and sister-in-law to jointly raise your children, include them both as co-guardians. What happens if one of them dies while your children are still minors? Are you comfortable with the other one raising your children by themselves?
- Is your chosen guardian up to the task financially? Raising children is expensive. While you have prepared financially for your children ahead of time though your estate plan, be sure to consider your chosen guardian's financial resources as well.
- Will your child have to change schools? Many parents would prefer that their children be able to stay in their same school or at least school district should something happen to them; either way, it's important for you to consider where your child would be attending school while living with his or her new guardian.
- Does your chosen guardian understand your child's educational preferences or special needs? Do your children attend public schools, private schools, religious schools, or are they homeschooled? Do they have special needs that requires them to attend a specific school? How will your death affect your child's education?
- Does your chosen guardian share your personal and religious values? You probably would prefer a guardian who shares your basic values and goals as a parent so that your children will be raised similarly to the way you would have raised them. If religious doctrine—or alternately, not teaching religious doctrine—is particularly important to you, you should consider this when choosing a guardian.
While thinking about all this and choosing a guardian may be a difficult decision to make, it will be even harder for your children if you don't do this. You are the best person to this. Review this list of considerations above and finding someone who meets all of the criteria important to your family and is willing to do this. You can do this. You know your children best and will be able to make the best choice possible for them.
Once you have a preliminary list of potential guardians, put them in order of your preference. Then start at the top of the list and have a heart-to-heart with the person selected. Before naming a guardian on your will, sit down and talk with your choice. First and foremost, you want to make sure that he or she will agree to becoming the guardian of your child should anything happen to you. It also helps to discuss the considerations outlined above so you and your chosen guardian know how each of you feel about the answers to those questions.
In the event of your death, a guardian will be appointed, with or without a will. The court will then require the guardian to file an initial report. The guardian must then continue to file reporting or accountings with the court throughout the length of the guardianship.
Make sure the courts know who you want to raise your children. If you need to create a will, prepare an estate plan, or update an existing will, contact the Law Offices of Gary W. Desper. Our offices are location in Carroll County, MD.
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