Legal Guardianship: Will Provisions for Families with Minor Children

At a minimum, parents with children under the age of 18 should have a Will drafted by an experienced estate planning attorney.

The Last Will and Testament is the document that names legal guardianship for minor children. If one spouse dies, the other spouse is automatically the legal guardian unless their parental rights have been terminated. If the surviving spouse later remarries, the Will should be updated to designate who has control should something happen to the survivor while the children are still minors. Should both parents die contemporaneously, the named guardians would become responsible for the care of the children. 

The naming of legal guardians requires consideration of both present and future circumstances.

Think about the age, health and physical location of the individuals, recognizing that any of these factors might change as time goes by. It is wise to choose primary and secondary guardians should anything prevent your first choice from accepting the responsibility. And of course the individuals must consent to their being appointed a guardian. The candidate should have suitable guardian temperament and ability.

If a judge determines that a minor’s interests are not being adequately represented he or she may appoint a lawyer guardian ad litum to represent the minor. The lawyer guardian ad litum has a duty to determine the minor’s best interests and to represent them in court.

Should the legal guardians have to step in to care for children, they will need access to your assets.

Wills provide bequests of the estate’s assets through a Testamentary Trust, a trust that is created upon your death based on instructions in your Will. A Mother and Father will provide that upon their death their children will receive all of their estate in equal shares. This gives the guardian financial authority over your assets.

As the Last Will and Testament provides for an appointment of a guardian over the children, it will likewise provide for the creation of the trust in which the family's assets are kept for the care of the children until they reach a certain age. Many parents prefer to stipulate that children do not take control of their assets when they reach the age of 21, but rather the age of 25 when they are likely to have completed school and have more maturity.

When guardians are not named and a trust has not been created to control the family’s assets, the appointment of a legal guardian will be made by a Probate Court. The decisions a Judge makes may well not coincide with your own desires. Estate planning will allow you to make your own decisions about the care and support of your family, now and in the future.

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