Groups » Why It Is Important to Delegate Legal Guardianship for Children

Life is busy, and frequently parents are overwhelmed with many priorities of daily schedules, needs, finances, and other important considerations. But in the hustle and bustle of daily life, it is important for parents to consider their legal obligation to designate a guardian for their children, if both parents are incapacitated or deceased.

Much like arranging life insurance, our mortality is something that few adults consider, nor do most us take the time to ask “what will happen to my family after I am gone?” Frequently, the assumption is that in the worst-case scenario, other family members would step in to care for and assume legal liability and control over your children, estate, and finances. But would it be the right person taking care of your needs?

We will explain why delegating legal guardianship for children is an important aspect of parenting and financial management. What are the dangers for your estate and children, if guardianship is not established before your death? How vulnerable will your children be to misappropriated finances and care if the court must arbitrarily designate a guardian? We’ll explore the alternatives and provide some family law recommendations and resources.

Why Does a Legal Will Matter?

When parents do not provide a legal will, they are leaving the guardianship of their children and dispensation of their property (money, investments, house, and other assets) to the court to determine as it sees fit. While the court will not allow the seizure of assets and finances that belong to children of deceased parents, it can dictate terms that may or may not conflict with the wants and needs of the family. If children are minors, the issue will go to probate court to determine control over the care of children and all properties and expenses.

When one parent dies without a will, in the case of a marriage between a biological parent and a stepparent to surviving children, the legal management of money becomes difficult and contestable. For instance, without a will, your surviving partner may not automatically inherit your estate, which can pass to your children. If your children are under the age of 18 years (minors), the money can be held by a conservator, who may limit or prohibit access to funds by the surviving spouse (even if the spouse agrees to continuous support of obligations to the children).

A legal will, no matter how old or young the individual is, provides the only assurance that property, money, and care will be provided according to the deceased parent and his or her wishes. It is also important to note that parents of adults with disabilities, or those who are caring for elderly family members, should also provide care instructions for any dependents in the will to assure that their care needs are met after the income provider has died.

Most estate lawyers are experts in drafting last will and testaments that include guardianship orders, per family law requirements in the state of residence. While fees vary, the average individual can expect to pay between $500 to $1,000 for a legal will, and additional fees if the will requires updating or changes over time.

Understanding the Type of Guardianships Under Law

A legal guardian who is an individual, agency, or an institution designated by the court must be aware of different types of guardianship as he/she will be responsible for the care, emotional well-being, education, healthcare, and financial management for a child. The responsibilities given to appointed guardians are outlined by state, and all states have specific guidelines that pertain to both young children (minors) and for incapacitated or vulnerable adults with disabilities who are not self-supporting or sustaining in terms of activities of daily living.

A guardian must be an individual over the age of 18 years who has not been convicted of a felony offense, and an individual who has not been deemed to be cognitively or physically disabled. Courts may sometimes designate a family member to be the custodial guardian of a child or children, but allocate the financial management of inheritance and property administration to a public or private institution as an unbiased party to manage the money.

What Are Average Costs Associated with Legally Assigning Guardianship?

Another reason to establish guardianship and conservatorship of finances and assets through a will is that it is significantly less costly to the estate than going to probate court to argue and contest custody after the death of a family member.

Before guardianship can be established, there are fees for filing the initial petition to determine capacity of the applying guardian, which can range from $200 to more than $700. An attorney is required to file the petition in court, subject to the attorney’s hourly rates. Physicians, nurses, and social workers may also be called to determine the children’s needs or special considerations, and these specialists charge an hourly rate that varies by professional.

Other unexpected and costly fees include:

1. Cost of notifying and summoning family members to court for proceedings.

2. Attorney fees for court approval, including filing and preparation fees required by the guardianship judge.

3. Accounting fees to create a summary report of assets and allocation of expenditures for guardians who are granted financial control over children and their inherited estate.

4. Court fees for annual hearings and reviews.

Some of the most unfortunate cases of parental death without a last will and testament is the right for other family members to remove children from the custody of the surviving stepparent. A stepparent or non-biological parent can be named both the inheritor of the estate (partial or in trust for the children) and guardian of any minors by a legal will.

Take the time to delegate guardianship for your children and determine how you wish investments, life insurance, and other assets to be distributed after your death. You will save your family thousands of dollars in probate and court fees, as well as the administrative difficulty. Assigning guardianship for your children will provide a tremendous amount of relief, knowing that after your death, your family will be provided for per your specific wishes.

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