Always Designate more than One Guardian in Your Will
In addition to designating in your last will and testament the persons who will receive your property, there is also an important need for you not only to name one guardian for your minor children but also to name a successor guardian. Designated as “contingent guardians”, they are often called “back up guardians” for your minor children.
Let's assume that you signed your last will and testament 10 years ago and you only designated one guardian. Factually you may have a surviving spouse or a surviving ex-boyfriend who is the other parent of the children. Being the natural parent is a major consideration when the Court approves a guardian. A surviving spouse will most likely be appointed guardian if that spouse is the natural parent of your minor child (children). However, a surviving natural parent will have the same status to become guardian even if that natural parent was not your spouse.
If you have designated only one guardian and circumstances have changed since you signed your will, for example, your proposed guardian has died, become disabled, become addicted to drugs or alcohol or in some other way become unfit to be guardian of your children, then you need to have designated contingent guardians. We usually recommend designating at least one guardian as your first choice and two additional successor guardians.
After you have passed, the will permits your designated guardian to manage, supervise, and care for your children on a temporary basis. However, your designated guardian, or your successor guardian in the event the first-designated guardian is unavailable, will need to immediately file a petition for guardianship of the minor children. Courts generally follow the preferences of the decedent’s designated guardians, however, the Court does not rubber stamp your appointment of the guardian or guardians. The petition covers valuable information that the Court requires in order to review the fitness of the guardian(s) you have designated and to help the Court decide that your designated guardian most likely will act in the best interest of the minor children. In this process there are a number of checks and balances as well as a formal hearing at the circuit court of the county where the child resides. Also, and very importantly, the minor child is represented by an attorney appointed by the court to be sure that the proceedings are in best interests of the child or children.
Notices need to be sent to all interested persons. “Interested persons” are people related to the child and/or who provide services to the child, persons having assets belonging both to the deceased parent and the children, support services that provide aid or assistance in some form to the minor child, and individuals who would receive the assets of a deceased parent as though the deceased parent had died without a will. Don't confuse what is considered an “interested person” in the above factual scenarios that I described where the decedent has a will and has designated the proposed guardian. All interested persons will be given a show cause order for them to determine if the proposed guardian is a fit and proper person to have guardianship over the minor children or to express a reasonable belief that the proposed guardian will not act in the best interests of the minor children. Thereafter a formal hearing occurs in which the judge determines a number of issues regarding fitness of the proposed guardian, whether the proposed guardian is likely to act in the best interest of the child or to act solely in order to take advantage of assets that should benefit only the child, and if the proposed guardian will act in their own self-interest.
Some people believe that the government should not interfere with your designation of a guardian. However, circumstances change and it may be in the child's best interest to have the Court review your designation and appoint the guardian, especially when circumstances have changed. The guardian who you appointed at the time you executed your will may have an addiction, been convicted of a felony, or in some other way be deceitful or dishonest at the time of your death. Another example would be where the deceased parent stated in his/her will that the surviving natural parent should not be the guardian of the minor children. That surviving parent may be unfit or seeks to prevent the minor child from benefiting from the assets that were part of your estate. The designated proposed guardian is the person who will have control, once appointed as guardian, to hold all of the assets and to perform the same parental acts as you had as the parent, while living, of your child/children. The court may grant guardianship only over the minor child’s person but not over the assets of the guardianship estate. Also, at least annually an accounting must be provided to the court identifying all of the assets of the minor's estate as well as all income and all expenses. A special clerk of the court is assigned to review the annual report of the Guardianship Estate and may investigate suspicious or questionable expenses, and/or exclusion of assets that were identified previously where there has not been adequate documentation of sale or disposal of those assets, or expenses that appear to be unreasonable. Checks and balances of the guardianship process often result in better choices of reasonable expenses and preservation of your assets that comprise the guardianship estate upon your death.
Fred Antenberg has been practicing law for over 30 years in Howard County and surrounding counties in the Baltimore and Central Maryland area and is knowledgeable of the guardianship process. Contact Fred by calling 410-730-4404 and request a free initial consultation.