Every parent knows how important it is to select a guardian for minor children. Many parents find this decision to be terribly stressful.
Here are some tips to help with deciding whom to nominate as the guardian of your child if neither parent is living (or if both parents became incompetent).
In California, there are two types of guardians for minor children–guardian of the estate and guardian of the person. The guardian of the estate deals with any assets left to a minor child (not in trust for the minor). This post deals with the guardian of your child’s person.
The guardian of your child’s person makes the decisions about your child’s well-being for food, clothing, medical care, education, home, and recreation.
First, in considering whom to nominate as the guardian of your child’s person, take into consideration all of the possible candidates, from Mom’s relatives to Dad’s relatives to your friends and the parents of your child’s friends.
Of course, no one is required to act as guardian simply because you nominate them. So eliminate those whom you know would decline to act.
With your remaining list of possible candidates, consider these factors:
- Do you want the person only if that person remains married to the current spouse? Or is marital status irrelevant?
- Who has a genuine interest in your child’s welfare and best interest?
- Who has a present relationship with your child (and, if desired, your family)?
- Does the person possess your desired personal attributes for raising your child? (What are the personal attributes that are important to you?)
- Will the person seek the help that you would want in raising your child?
- Does the person have your desired level of integrity and stability to do what is in your child’s best interest?
- Will the person provide the social, financial, educational, moral, and religious upbringing similar to what you would have provided?
- Will the guardian work well with your child’s trustee (who has control of your child’s financial inheritance)?
I recommend that nominations of guardian include alternate choices. Your written nomination of guardian should be part of your estate planning documents and consistent with your trust for your minor child.
It is essential that you review your selection frequently, especially as your child gets older and as changes happen in your life and residence and in the lives of those whom you nominated as guardians of your child’s person. Revisit this annually.
In California, the determination of who serves as guardian is made by the court’s determination of what is in “the best interest of the child.”
In California, Probate Code 1514 requires the court to appoint the parent’s nominee who petitions for the position of guardian of the person “unless the court determines that the nominee is unsuitable.” But the law gives the court the ability to consider the child’s preference and to consider what the court believes is in the child’s best interest under the circumstances at that time.
In California, any relative or “other person on behalf of the minor” may seek to become the guardian of the minor’s person. Relative is defined as a spouse, parent, step parent, sibling or half sibling, uncle, aunt, nephew, niece, first cousin, “grand” or “great” relatives, and the spouse of those persons. (Probate Code 1513 (g).) Person on behalf of the minor would include whomever the minor’s parent nominated as guardian. Also, in California, once the minor is 12 years old, the minor may petition for appointment of guardian of the person of the minor’s choosing. (Probate Code 1510 (a).)
Copyright James J. Phillips January 2015