As parents, we work hard to provide the best possible lives for our children.
We can't imagine life without them and don't even want to consider
the opposite situation their life without us. Who will take care of them?
Who will make decisions regarding their lives and their support? And who
will pay for it?
In general, if both parents of a minor child die, any person who is willing
to take care of the child can petition the Court to be appointed the "guardian"
of the child. The Court will evaluate the person, analyze their ability
and capacity to take care of the child, and weigh objections from others,
if any. If there are two or more willing persons, the Court will evaluate
them all. Once appointed, the "Guardian" will owe strict legal
duties to the child, similar to those of a natural parent.
If known, a parent's wishes can have a profound influence on who the
Court appoints as guardian. A "Nomination of Guardian" is the
legal document parents can use to make such wishes known. It is typically
drafted as part of an overall estate plan and specifies, in detail, who
the parents would want to take care of their children should they both
die. Often of even greater concern, the document can specify who is expressly
forbidden to take custody of the children.
Ideally, a guardianship is used in conjunction with a Family Trust. The
Trust will hold all the assets from which the Guardian will meet the financial
needs of the child. Further, a Nomination of Guardian can, and usually
does, state specific desires that a parent may have for (a) the transition
of the child and the guardians into each other's lives, (b) the future
medical, educational, religious and financial needs of the child, and
(c) assuring that resources are available to meet those needs.