Creating a comprehensive and successful estate plan requires you to do much more than simply deciding who will receive your property and estate assets after you are gone. If you are the parent of minor children, a well-thought-out and properly drafted estate plan is even more important. Your estate plan, for example, is the only official opportunity you will have to choose a guardian for your children if one is ever needed. While it is important to name a guardian in your estate plan, it is equally important to name the right person(s) for the job.
The concept of guardianship is often confusing. The terms “custody” and “guardianship” are frequently used interchangeably when, in fact, they do not have the same legal meaning. Custody of a minor child is something typically determined during a divorce in family court. A parent who has custody of a minor child is not directly supervised by a court. Guardianship, on the other hand, can be temporary or permanent and is usually granted by a probate court, not a family court. Moreover, the court retains jurisdiction and oversight over guardianship of a minor child which often means the guardian must report to the court on a regular basis.
In California, there are two types of formal guardianships that apply to a minor child: guardianship of the estate and guardianship of the person. The same person can be appointed as both guardian of the estate and of the person or there can be a separate guardian for each guardianship. Understanding both types of guardianship is essential when deciding who to appoint as a guardian for your children.
California also recognizes informal guardianship of a minor child. Unlike formal guardianship, this type of guardianship does not require court approval. A parent may sign a letter of Guardianship Authorization giving someone temporary, limited guardianship over a minor child; however, the parent retains the right to revoke that authority at any time. A parent may also sign a Caregiver’s Authorization Affidavit in California if the guardian is a qualified relative. Both schools and healthcare providers are legally required to accept the authority granted in the affidavit; however, there are other important limits to the authority granted to a guardian in an informal guardianship.
As a parent, the idea of not being here for your children is something you likely prefer not to think about; however, failing to consider the possibility could lead to unwanted consequences for your children. When you create your Last Will and Testament you have the ability to nominate a guardian (or guardians) for your children. While a judge will ultimately have to approve a guardian for your kids if something happens to you, nominating one in your Will tells a judge who you want that guardian to be.
If you do not make it clear who you want to be the guardian of your children, and a guardian must be appointed for any reason, any qualified adult can petition to become that guardian. By nominating one yourself you avoid a judge making the decision without your input. Moreover, when a parent’s wishes are not clear it can lead to a costly and divisive court battle among family members over the right to become the children’s guardian.
For many people, deciding how to distribute their assets within their estate plan is a far simpler task than deciding who to appoint as a guardian for their minor children. It is not easy to contemplate someone else raising your children but choosing the wrong guardian can be worse than not choosing one at all. With that in mind, consider the following when deciding who should be the guardian for your children:
Because it is such an emotionally charged decision – and often one people prefer not to dwell on – it can be easy to make mistakes when it comes to choosing a guardian for your kids, such as:
We understand that decisions such as the guardianship of your children is not one to take lightly. If you are a dentist, optometrist, physician, or veterinarian and have questions regarding your estate plan or need help amending or creating one, contact Dental & Medical Counsel to schedule a complimentary consultation with attorney Ali Oromchian.
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