Estate Plan Check-Up 5: Guardians and Guardianship

By Deirdre R. Wheatley-Liss, LL.M, CELA and Crystal West Edwards, Esq., CELA

If you have children who are minors, you need to name guardians in your estate plan.

If you don’t and you and your children’s other parent die, a judge will be the person who decides who's going to raise your children.

That is not a situation that anybody wants. So please, please, please, if you know folks who have minor children, please have them do a will so they can name guardians.

Note: the only place you can name a guardian is in a will. 

Temporary or Stand-By Guardians

New Jersey also allows you to name a temporary guardian, a stand-by guardian. This is somebody who has the authority to act immediately if you're incapacitated or if you've passed away. This is particularly important. There are times when we have folks for whom the designated guardian lives overseas, and the person would need time to get back to the U.S. If you have named someone as a temporary guardian – say a neighbor or friend – it makes a difficult situation somewhat easier, so there is someone who can legally look after the children until the permanent guardian arrives.

Another important provision in their will that parents make for their children – especially minor children –is a trust. (But we’ll leave a discussion of that to a blog post 7 in this series, “Trusts.”)

Divorced Parents and Guardianship

If you are a parent who is divorced, you may wonder if you need to designate a guardian if your former spouse would get custody of your child upon your death.

Assuming that the divorced spouse is the natural parent of the child, they would get custody of the child upon your death.

Having said that, however, we usually do recommend, first of all, if people are getting a divorce that they both name in their documents, the same person, as the next guardian, so we don't have “grandparent wars” or similar disputes in the event both natural parents die while the children are still minors. We also recommend that you name a successor guardian – in the event your preferred guardian is unable to serve in that role.

Guardians for Incapacitated Adults

Another type of guardian is the one who is needed when an adult has been found by a court to be incapacitated – that is, in a formal proceeding, a judge determines that a person is no longer able to manage their own legal, medical, or financial affairs.

While the court must name a successor guardian of an incapacitated adult, if you are the current guardian you can suggest a successor in your will.

This post is for general informational purposes only. The information provided may or may not apply to you given the specifics of your situation. For a video presentation of this information, please visit Estate Plan Check-up. For more detailed information, please visit www.porzioplanning.com or contact us for a free 20 minute telephone consultation.