Klug: Who will care for my minor children when I’m gone?
January 16, 2014
This week’s column looks at the process by which a guardian is appointed to care for a minor child after the death or incapacity of the child’s parents.
First, a parent may appoint a guardian by a will or other signed writing for any minor child the parent has or may have in the future. The will or other writing may specify limitations the parent wishes to place on the guardian’s powers. It is important for parents of minor children to make such an appointment as part of their estate plan.
Second, appointment of the guardian will become effective if the parent dies, is determined by a court to be incapacitated or a physician who has examined the parent determines in writing that the parent is no longer able to care for the child, whichever occurs first. If there are two parents, the appointment of the guardian will become effective upon the occurrence of these events for the second parent. The second parent’s appointment of a guardian will take precedence over any appointment by the first parent while living.
A parent who knows he or she will likely become unable to care for the child within two years may petition the court to confirm the appointment of a standby guardian. This can provide significant peace of mind for a parent struggling with health problems. The process for confirmation of the guardian described below would typically be tackled in advance using this process so there would be no doubts about the guardianship when the time comes.
Third, it is necessary for the guardian to file an acceptance of appointment and a copy of the appointing document (will or other signed writing) with the court within 30 days after the guardian’s appointment becomes effective. It is further necessary for the guardian to give written notice of the acceptance of the appointment to the appointing parent, if living; to the minor child if the child is 12 years of age or older; and to any other person having care and custody of the child. It is a good idea for the appointing parent to not only let the guardian know about the appointment ahead of time, but also to let the guardian know about legal responsibilities that come with the job.
Fourth, unless the court has previously confirmed the appointment as described above, the guardian must ask the court to confirm the appointment. A minor child over the age of 12, and any other person required to receive notice of the acceptance of appointment as described above, can object to the appointment. If that happens, the appointment will immediately terminate and the court may then appoint an emergency or temporary guardian, or both, until a permanent guardian is determined.
Fifth, a minor child over the age of 12 may choose whether to consent to the appointment of the guardian before the guardian accepts the appointment or within 35 days afterward.
If the child does not consent to the appointment within the specified time, the court will determine the proper guardian for the child.
In sum, if the parent has appointed a guardian, the guardian has accepted the appointment, the appointment is not terminated by objection and any minor child over the age of 12 has consented to the appointment, the court will likely confirm the appointed guardian without a hearing. Otherwise, the court will hold a hearing and appoint whatever guardian it deems in the best interest of the child. It is important for parents to appoint a guardian in a will or other document, but they should recognize that the ultimate outcome is subject to the court process.
Noah Klug is owner of The Klug Law Firm LLC, in Summit County. He may be reached at (970) 468-4953 or Noah@TheKlugLawFirm.com.