As a parent, you are responsible for the care of your minor child. In most circumstances, this means getting them ready for school, making sure they are fed, and providing for their other basic needs.
But what would happen if you and your child’s other parent were unable to care for them?
If something happens to one parent, the child’s other legal parent will most likely have custody and authority to care for the child. There may be exceptions when the surviving parent is unable or legally unfit to assume that responsibility.
In most cases, estate planning helps protect your child if neither parent is able to provide care. One of the first steps is naming a guardian.
What Does It Mean to Name a Guardian for Your Child?
Naming a guardian means identifying the person you would want to care for your minor child if you cannot.
A guardian of the person generally makes decisions about the child’s daily care, including:
- Housing
- Food and clothing
- Education
- Medical care
- Other personal needs
A guardian of the property may be needed to manage money or property owned by the child. The same person may serve in both roles, but parents can choose different people when that arrangement would better protect the child.
The Maryland Courts explain the distinction between guardianship of the person and guardianship of the property. A guardian of the person addresses the child’s personal needs, while a guardian of the property manages money or property belonging to the child.
What Happens If You Die Without Naming a Guardian?
Many parents understand the importance of naming someone to care for their minor children if both parents die. Making this nomination is an important step toward protecting your child’s future.
Without an Estate Plan
If you and your child’s other parent die without officially naming a guardian, a judge will have to decide who should care for your child.
The court will consider applicable state law, the available family members, and the child’s best interests. Several people may have the right to ask the court to appoint them.
The judge must make a decision based on the information available during the guardianship proceeding. However, the judge may not understand every detail of your family relationships, parenting preferences, or concerns about particular individuals.
As a result, the court could appoint someone you would not have chosen to raise your child.
With an Estate Plan
Proactive planning allows you to nominate the person you want to care for your child if neither parent is able to do so.
A guardian nomination does not automatically appoint that person. The court generally retains authority to make the final decision based on the child’s best interests.
However, a parent’s clearly documented choice can carry significant weight. It gives the judge important information about whom the parent trusted to care for the child.
The most common place to make this nomination is in a last will and testament.
Can You Name a Guardian in Your Will?
Yes. Parents commonly nominate a guardian for their minor children in their wills.
A will becomes effective after death. In addition to nominating a guardian, it can explain how the parent wants their accounts and property distributed.
Depending on state law and the family’s circumstances, a parent may also use a separate document to nominate a guardian or standby guardian.
Some parents prefer a separate document because it may be easier to update when their choice of guardian or backup guardian changes. A separate designation may also help address situations in which a parent is still alive but unable to care for the child.
The document must comply with the law of the state where it will be used. A general statement, informal letter, or conversation with a family member may not provide the necessary legal authority.
What Should You Consider When Choosing a Guardian?
The person you choose does not have to be your closest relative or friend. The most important question is whether that person can provide the care and stability your child needs.
Factors to consider include:
- The person’s relationship with your child
- Parenting style and values
- Physical and emotional ability to provide care
- Financial circumstances
- Location and living arrangements
- The ages of the guardian and your child
- The guardian’s existing family responsibilities
- Willingness to serve
- Ability to manage conflict with extended family
- Your child’s educational, medical, or special needs
You should speak with the person before naming them. Serving as a guardian is a significant responsibility, and the person should understand what you are asking.
It is also wise to nominate at least one backup guardian. Your first choice may die, become incapacitated, move away, or be unable to serve when needed.
What If You Are Alive but Incapacitated?
Most discussions about guardians focus on what happens when both parents die. However, a parent may also be alive but temporarily or permanently unable to care for a child.
A serious illness, injury, or loss of mental capacity could prevent you from managing your own affairs. If you cannot make decisions for yourself, you may also be unable to make decisions for your minor child.
Without an Incapacity Plan
If you have not created an incapacity plan, a judge may have to decide who should care for your child.
As with a guardianship following death, the court may have little or no written guidance about whom you trust. Family members may also disagree about who should assume responsibility.
With an Incapacity Plan
A comprehensive estate plan can identify the person you want to care for your child if both parents become incapacitated.
A nomination contained only in a will may not fully address this situation because a will becomes effective at death. A separate document designed to address incapacity may provide more useful guidance.
Maryland law, for example, allows a parent to designate a standby guardian through a written designation that meets specific signing and witnessing requirements. A standby guardianship may be used when a parent becomes mentally incapacitated or physically debilitated.
The Maryland Courts provide information about standby guardianship, as well as guardianship forms for parents and prospective guardians.
Depending on the nature of the parent’s incapacity, the guardian may be needed only temporarily. If the parent regains the ability to care for the child, the parent may resume full responsibility.
What If You Are Traveling Without Your Child?
Parents sometimes travel while leaving their children with relatives, friends, or another trusted caregiver.
You hope nothing will go wrong while you are away, but it is still important to prepare for an emergency.
Without Written Authorization
Without appropriate documentation, the caregiver may encounter delays if the child needs medical treatment or permission for a school activity.
A hospital or school may try to contact you before accepting instructions from the caregiver. Reaching you may be difficult if you are on a flight, traveling internationally, or on a cruise ship with limited phone or internet access.
A child will likely receive necessary emergency treatment. However, the caregiver may encounter roadblocks when trying to obtain nonemergency medical services or make time-sensitive decisions.
With Written Authorization
State law may allow you to temporarily delegate certain decision-making authority to another adult.
You continue to have parental authority, but the caregiver is also authorized to make permitted decisions while you are unavailable. Depending on the document and applicable law, this may include decisions involving medical care, school, or other daily needs.
The exact name, permitted authority, signing requirements, and effective period of the document vary by state. Parents should not rely on a generic form without confirming that it complies with the applicable law.
Because some authorizations remain effective for only a limited period, they should be reviewed before each trip or extended absence.
Does Naming a Guardian Guarantee the Court Will Appoint That Person?
No. A guardian nomination communicates your preference, but the court generally makes the final appointment.
The judge’s primary concern is the child’s best interests. The court may decline to appoint the nominated person if that individual is unwilling, unable, or unsuitable to serve.
This does not make the nomination unimportant. Without it, the court may have no reliable record of your wishes. A properly prepared nomination gives the court meaningful guidance and may reduce uncertainty or conflict among family members.
Should the Guardian Also Manage the Child’s Inheritance?
Not necessarily.
Caring for a child and managing an inheritance require different skills. The person who would provide the best home for your child may not be the best person to oversee money or investments.
A trust can allow you to name a trustee to manage the child’s inheritance separately. The trustee can use the funds for purposes such as health care, education, housing, and support according to the trust’s instructions.
This arrangement can also prevent a child from receiving complete control of a substantial inheritance immediately upon reaching adulthood.
Your estate plan should coordinate the guardian nomination with your will, trust, life insurance beneficiary designations, and retirement account beneficiary designations.
Review Your Guardian Nomination Regularly
Choosing a guardian is not a one-time decision. Your preferred guardian may change as your child grows and your family circumstances evolve.
Review the nomination after:
- The birth or adoption of a child
- Marriage or divorce
- The death or incapacity of a nominated guardian
- A guardian moving to another state
- A significant change in family relationships
- A change in your child’s medical or educational needs
- A change in the guardian’s ability or willingness to serve
You should also make sure your chosen guardian knows where to find your estate planning documents and whom to contact if an emergency occurs.
We Are Here to Protect You and Your Children
Being a parent is a full-time job. We want to make sure that, regardless of what life brings, you and your child are protected.
McDonald Law Firm can help you nominate the right people to care for your child, manage your child’s inheritance, and make decisions when you cannot.
To learn more or schedule a consultation, contact us:
- Howard County: 443-741-1088
- Montgomery County: 301-941-7809
- District of Columbia: 202-640-2133
DISCLAIMER: THE INFORMATION POSTED ON THIS BLOG IS INTENDED FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED TO CONVEY LEGAL, INSURANCE, OR TAX ADVICE.
