Who would take care of my children if I die?

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        The question of guardianship arises upon incapacity or passing away of both parents of minor children. If the parents failed to appoint a guardian to take over the custody and care of the little ones, the court would select a legal guardian using the best interest of the child standard. This article will analyze the most frequently asked questions regarding guardianship and offer various solutions to selecting the best person to care of you children in case of an emergency.

So let’s start with the basic and most frequently asked questions regarding guardianship.

Q1: WHAT DOES BEING A LEGAL GUARDIAN MEAN?  

Legal guardian is the person appointed by the court to care for your children and raise them in their home. This person assumes all legal responsibilities for your minor child. This means that they are 1) responsible for the child’s care and 2) have authority to make decisions regarding the child’s education, health care, and personal needs.

Q2: HOW LONG DOES THE GUARDIANSHIP LAST?

Once a guardianship is granted, it remains in effect until the child turns 18 years old or a court order terminating the guardianship is issued.

Q3: HOW LONG DOES IT TAKE TO GET A GUARDIAN APPOINTMENT?

From the time the guardianship petition is filed, it will usually take 4-6 months for the guardianship to be granted.

Q4: WHO CAN FILE FOR GUARDIANSHIP?

ANY INTERESTED PERSON. Yes, you read that right. Anyone interested in raising your children, can file a guardianship petition in an attempt to claim the custody of your children. ANYONE. The law does not require that the guardian would be related to the child, have a connection to the child, or know the child parents.

Obviously, that does not mean that any such petition would be granted automatically.

The Family Court Services or the Child Protective Services would first perform an investigation to determine the petitioner’s suitability to have the guardianship of a minor. At the end of this investigation, the social worker will issue a report making recommendations to the judge deciding on the guardianship case. The judge will then make the decision regarding the petitioner’s suitability and establish the guardianship based on the social worker’s recommendation.

The problem is that no matter how well intended the judge, he or she does not know your children or the dynamics of your family. The court also does not know what is going on outside of the courtroom or the facts intentionally or unintentionally omitted from the guardianship pleadings. The “best” guardian for the child will be determined based on the arguments presented in the case paperwork and the testimony at the guardianship hearing. The hearing will usually last I think all of us would agree that it is pretty much impthe margin for error select

Q5: CAN I AVOID ALL OF THE ABOVE AND DECIDE WHO WILL TAKE CARE OF MY CHILDREN MYSELF? 

ABSOLUTELY. Guardian appointments can be included in your will, your power of attorney in case of incapacity, or a separate declaration of guardianship, which would cover both death and incapacity. The appointed guardian would then submit this documentation to the proper authorities and get it entered as a court order.

Q6: HOW DO I SELECT THE BEST PERSON TO CARE FOR MY CHILD? 

The guardianship designations are extremely important since you are choosing the people who would provide the physical care for your child and raise them in their home after you are gone.

You want to think of people that your child knows well, possibly has an attachment to or shares a special connection with. If you decide on a married couple, don’t forget the possibility of a divorce or separation. Who would you want to take care of your children in such case? One of the estranged spouses? An alternate guardian?

What if your intended guardian lives out of state? In such case, you will probably want to select a temporary guardian who lives in the near vicinity to provide the children’s care in case of an emergency until the permanent guardian takes over the custody and care.

Next, consider the prospective guardian’s ability to manage assets for the child’s benefit and their history of fiscal responsibility. If the person who has the closest relationship with your child were terrible with money, you probably would not want them to have an unlimited access to your child’s estate. In that situation, you can select another individual to be the guardian of the child’s estate, i.e. a person who is financially responsible and can effectively manage the child’s finances.

Only when you have the guardianship appointment in place you can have the peace of mind knowing who would take care of your child, influence the child’s upbringing, and provide the care and love that, although would never substitute for the love of parent, would hopefully come in the second best.

If you would like to know more about appointing a guardian for your minor children in case of your incapacity or death, please contact our office at  858-764-2547 or email Attorney Milda Goeriz at milda@sandiegotaxlawgroup.com

 

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