Arguably, there's nothing more important than planning for the care of your young children should you pass on too soon. But unfortunately, more often than not, estate planning in Huntsville, AL, and everywhere else is something that most people tend to ignore.
However, there may come a time when important decisions must be made in your absence regarding the care for your children or another loved one you're providing care for. It can be brutal and even heartbreaking to imagine. Still, there's always the possibility—which is why estate planning and appointing a guardian is essential.
Of course, choosing a guardian for your children is no easy task. That's why you should start by learning all you can about guardianship, so you can make a better decision for the sake of your young children.
In this article, we're going to cover everything you need to know about guardianship for minor children.
Defining Guardianship
Legally speaking, guardianship is characterized as the process of appointing another trusted person to step in to care for your children or any other dependent should you become unable to do so yourself. You can also use your will to name a guardian for your unmarried incapacitated adult child, or for your incapacitated spouse. The person you name must file an acceptance in probate court, and your child or spouse can object.
Once it's time for the legal guardian to step in, this person would assume all the responsibilities of care provided, whatever the circumstances may be. This would include the responsibility of providing housing, education, food, and other basic needs such as clothing and meeting any medical needs of the minor or individual in question.
Ultimately, a guardian is a person who is chosen to fulfill the caretaker role. They are given the fiduciary duty to act on behalf of those to provide care for and are expected to always act in their best interest. This means they must also make sound medical, educational, and legal decisions on behalf of the children or individuals in their care.
In Alabama, a guardian cares for a child; a conservator manages the child's money and property.
That means naming a guardian is how you choose who would raise your children if neither parent can. It does not decide who controls their money. Without a trust or custodian, the probate court usually appoints a conservator to manage it until your child turns 19.
The role of a legal guardian is an incredible responsibility and obligation, so it's critical to choose your children's potential guardian wisely.
Types of Guardians
It's also important to mention that guardianships can differ in scope. In Alabama you name the guardian, and the probate court decides whether to limit the guardian's powers:
Full guardianship. Full guardianship entails taking on 100% of the responsibility in decision-making and authority over your children, including legal, medical, and other decisions.
Limited guardianship. The probate court can limit a guardian's powers, for example to help an older child build independence, and any limits are written on the guardian's letters.
Joint guardianship. Joint guardianship typically means that there will be more than one guardian appointed for care, each typically with a set number of responsibilities.
Guardianship vs. Custody vs. Adoption
While custody is often used concerning guardianship roles, it's essential to understand that guardianship is not the same thing as having custody over a child or children. It's also not the same concept as legally adopting.
First and foremost, legal guardianship is often relegated to someone who is not a child's biological parent, such as a close friend or relative.
For example, when a parent is deemed "unfit" for the role of parenthood, the state may step in and appoint a legal guardian. However, the parent or parents usually still maintain their legal parental rights.
In other words, guardianship is designed to be a temporary legal relationship to provide care for the child or children in question. However, the biological parents will typically still be obligated to support their child financially or, when it comes to estate planning, should provide the necessary funds for their chosen guardian should something unfortunate happen.
In terms of guardianships versus adoptions, it should be noted that adoptions are a final event. In an adoption, the adoptive parent becomes the child's legal parent. The biological parents' rights and obligations end, except for a parent who is married to an adopting stepparent, and a parent whose rights have ended has no right to visitation or any say in the child's care.
Becoming a child's guardian does not, under any circumstances, mean that the appointed individual will become the child's legal parent. Instead, the guardian makes decisions and provides care for the child much as a parent would.
When Does Guardianship End?
The person you name must accept the appointment in court when the time comes, and then serves under court supervision. Your choice takes effect only if both parents have died or are incapacitated, or the surviving parent has no parental rights. Otherwise, the surviving parent generally keeps custody. A child 14 or older can also object to the appointment. That authority ends when certain events occur.
A guardianship of a child lasts until one of the following events occurs:
The guardian resigns and the court approves the resignation
The child reaches legal age and is no longer a minor (age 19 in Alabama)
Either the child or the guardian dies
The child marries or is adopted
A judge decides that the guardianship is no longer needed
A judge determines that the guardian in question is not meeting the child's needs or is no longer serving their best interests. In this case, the judge will likely appoint a different legal guardian from the state or choose a capable relative
Ultimately, guardianship is meant to last until the child can take care of themself as an adult. If the child has special needs, you may need to find someone to provide long-term care or arrange for long-term housing in a special needs facility.
How and When to Choose a Legal Guardian
Put simply, there's no wrong time to appoint a legal guardian for your child or children. An experienced Huntsville attorney would encourage you to nominate a legal guardian as soon as you begin your estate planning to ensure you're prepared for the worst. If you're wondering when you should start your estate planning, they'd likely tell you as soon as you decide to have children and start a family.
Other times to consider narrowing down your options for a potential guardian would also include the following:
Before you decide to travel for the first time without your children
As you begin aging, usually once you become middle-aged
As you're planning your healthcare directives
Before any major medical procedures or treatments
After filing for a divorce
During the time of re-marrying
If your already-appointed legal guardian suddenly becomes ill or unable to fulfill their obligations for any other reason
Remember, as long as you have a child or children, it's never too early to include a legal guardian within your estate plan.
Appointing a Guardian as Part of Your Estate Plan
Determining who would be the best fit as a legal guardian can be overwhelming. It's hard to imagine anyone other than yourself caring for your children. Here are a few steps you can take to help you get started:
Determine the type of guardianship that will be needed. If you're planning for the worst-case scenario, it'll likely be a full-time guardian
Discuss your option with your spouse if you have one
Before finalizing your decision, discuss it with the person or people you've chosen. Taking on the duties of guardianship is an incredible responsibility, so you'll want to ensure they're up to the task, are available, and willing
Discuss the options and obligations with your Huntsville attorney to ensure you haven't left anything out
Clearly define the role and responsibilities of what you would expect from the guardian
No parent wants to think about their children being forced to grow up without them. However, being prepared gives you peace of mind that you have named the person you want to raise your children.
Planning ahead is a gift you can give your children. Schedule a consultation with Sarah S. Shepard to name a guardian and plan for how your children's inheritance will be managed.
Sarah S. Shepard is an estate planning attorney at Sparkman, Shepard & Shepard, LLC in Huntsville, admitted to the Alabama State Bar in 2012. She prepares wills and trust-based estate plans for families in Huntsville and North Alabama. More about Sarah S. Shepard.