Will

Creating A Will To Appoint Guardianship

This article discusses the needs of a will to appoint guardianship, as well as ways to determine who will be the best guardian for your children.

One of the main reasons to create a will is to appoint guardianship of your children. A guardian is legally responsible for the child's physical care, health, education, and welfare until he or she reaches 18 years of age. This will include providing basic needs such as food, clothing, shelter, health care decisions and education choices.

If you have minor children (children under the age of 18) then I am sure you have asked yourself who would take care of them if you passed away. If you are a parent, I can almost guarantee you have thought about this and at the same time I am sure you have also realized that this decision is not one made easily. When creating a will to appoint guardianship, you will need to put a lot of thought and care into it.

All you need to do in your will is to nominate the person you want to be the "personal guardian" of your minor children if one is ever needed. Then, if a court ever needs to step in and appoint a guardian, the judge will consider the person you nominated in your will unless, for some reason, it is not in the best interests of your children.

Perhaps the greatest peace of mind we can have about prematurely leaving our children is knowing who will take care of them should something happen to us. Creating a will to appoint guardianship of your choice is a way to ensure that you get to make this decision.

When creating a will to appoint guardianship, you should be aware that the guardian is not responsible to meet the child's financial needs with his or her own money. Many times a trustee handles these arrangements with money provided by the estate of the deceased parent or parents. The guardian is not paid for his or her services.

In most cases your child's other parent survives you and that parent will assume guardianship without any other special actions. However, you may need to provide for the possibility that the other parent will not be available to be your child's natural guardian (this can be the case for a variety of reasons).

Before creating a will to appoint guardianship, it is a good idea that you ask the person or persons if they are willing to become your child's guardian. A guardian is not legally obligated to serve, and an alternate choice is recommended in case your first choice refuses or is unable to serve. The person you choose as the guardian should have good parenting skills and values similar to your own. Family members or trusted friends can be a good starting point for picking an option.

Technically, your choice as a guardian is just a recommendation to the court, even though you created a will to appoint guardianship. However, state laws give high priority to your recommendation. The court will typically honor your choice unless it is presented with compelling evidence against that choice. Some states allow for a minor child to have input in the decision, particularly children who are 14 years of age or older.

If you don't name a guardian in your will, then you open up that position to anyone who asks for it. At this point a judge must decide—without the benefit of your opinion—who will do the best job of raising your kids.

You should name one personal guardian and one alternate, in case your first choice can't serve for each of your children. Legally, you can name co-guardians such as a married couple, but it may not be a good idea because of the possibility that the co-guardians will later disagree or get divorced.

10 factors you and your spouse need to think about before choosing a guardian.

When creating a will to appoint guardianship for your children, there are many factors that you will want to consider. Here are a few things that you should think about before nominating a guardian:

• Is the prospective guardian old enough?

(He or she must be an adult -- 18 years old in most states.)

Age is a big factor. With age comes experience. Remember, the guardian for your children will take your place in raising your children.

• Does your choice have a genuine concern for your children's welfare?

Your guardian will make many choices for your children's education, religious involvement and in how they will be raised. This includes their emotional, social, physical and financial skills. These tools will mold your child's future. You will want your child to be a well-rounded individual and this will take attention.

• Is your choice physically able to handle the job?

With age come restrictions. Are they physically well enough to take on this demanding of a job? Will they have the energy to raise young children, and are they young enough to undertake this responsibility until your children reach the age of maturity?

• Does he or she have the time?

Does your candidate have a busy lifestyle? Do they have a lot of children already? If so, can they handle the additional responsibility of raising your children?

• Does he or she have children of an age close to that of your children?

This can be considered a strength as well as a weakness; it all depends on how you look at it. Children of the same age can play together and grow together, which can be a good thing. However, if you have a household full of two or three year olds...we all know how difficult that can be.

• Does your candidate share your moral and religious beliefs?

Nobody will think exactly like you do on all matters, but you may want to choose someone with similar values and religious beliefs. In many cases those closest to us share similar views. These people are often family and close friends, and may be worth considering for guardianship of your children.

• Would your children have to move?

Moving could have a negative impact on your children's emotions. A new school, new social surrounding...all of these could magnify the trauma they already are experiencing.

• Will your choice be family?

If you decide to go with a friend instead of family, you need to consider how your family will feel. You will need to help your family understand the decision in advance to reduce the possibility that they might contest in a guardianship hearing. Remember that family members are typically given priority in such cases unless strong reasons to the contrary are presented to the court. You can explain such reasons in your will.

• Do you have the finances arranged?

What financial provisions are you setting up so that your children will be raised and educated properly without burdening the guardian? Making appropriate financial arrangements will ensure that you don't leave the costs up to your children's guardian and leave your children with financial hardships.

While there are a lot of details to consider, this is a big decision that requires more time and energy than any other part of your will. It is the most important decision you can make, therefore it needs to be the most informed and detailed decision possible. By creating a will to appoint guardianship of your children, you can keep the decision based on your wishes as opposed to a judge’s.