We looked at the term “legal guardian” in our last post–a person with the legal authority to care for and make decisions for another person. But how does this fit into your responsibilities as executor and as you are planning your own estate? In this post, we’ll look at why you might need to think about legal guardianship and how to use it in your will and estate planning. In our next post, we will consider the relationship between a legal guardian and executor.
As we covered in the last post–laws vary by state. So keep in mind differences in terminology. In some states minors (children) have legal guardians but adults have conservators. And in other states, legal guardians care for people and conservators care for money. Here we’ll use legal guardian terminology, but know that your state’s terminology may differ.
Remember from our last post the types of people who might need to use legal guardianship: children whose parents are dead, incapacitated, or incarcerated, and adults who have severe handicaps or disabilities, mental impairments (like dementia), are incapacitated, or are unable to care for themselves. You should think about the same things when you are determining whether you need to consider legal guardianship as you are planning your estate.
These are all examples of situations in which you will want to consider legal guardianship when you are planning your estate.
The most common use of legal guardianship in a will is when parents write a will when they still have minor children. Though we use this as an example, you can substitute in whatever situation you are facing when talking with your estate attorney about planning for legal guardianship in your own estate.
Naming a legal guardian for your minor children is as simple as listing that desire in your will, along with the person or persons you wish to execute that duty. This is your way to have a say about who you would like to care for every aspect of your child’s welfare, from where they go to school to what they eat for dinner, from their medical care to where they live.
Remember that if there is another parent with parental responsibility, it would likely take court proceedings to override that responsibility and appoint a legal guardian in their place. In short, the natural assumption under the law is that parents have responsibility over their children.
When naming a legal guardian in your will, consider the person or people who will be best to serve in this role. Consider basic things like a person’s willingness and ability to take on this important task. Then consider big things like how your selection of a legal guardian could impact things like where your minor children live (would they have to move to be under the care of their legal guardian, or would the legal guardian have the resources to move where you currently reside). Talk with your estate attorney about how big things like this might impact how you plan every aspect of your estate–not just the legal guardianship portion.
If you name more than one person as a legal guardian, and those people do not reside together, you may need to provide a specific delineation of duties or explicitly give authority for them to do the delineation. For example, the biggest thing would be where would the person being cared for live if two people are named as legal guardian?
Also, just as you name a successor executor, it is a good idea to name an alternate in case the person you name as legal guardian is unable or unwilling to serve.
You can provide additional information about your wishes for the type of care the legal guardian provides. Just as you may have provided for your own funeral wishes, work with your estate attorney to write down your preferences regarding caregiving, education, financial management, etc.
And if you feel comfortable doing so, talk with the person you name as legal guardian in your will both to make sure they are willing to serve in the role, but also to review your wishes regarding care for your children.
Naming a legal guardian in your will and chronicling your wishes with that person/people gives you input on the important caregiving role for those you love and care for now. Naming a legal guardian in your will also helps streamline the transition of care and can minimize potential disputes about who should take on the responsibility because your wishes are clear.
Let Executor.org help you with every aspect of serving as executor and planning your own estate. There are many steps, which we outline in a personalized plan. If you’re just getting started, you may want to begin by understanding your 15 Primary Duties as an Executor. And check out our blog for specific information about need-to-know executor and estate planning topics.