You can nominate a guardian for your children as part of your Estate Plan. Doing so means that in the event you are unable to care for your child, a judge will review your nomination and appoint guardianship. If biological parents are still alive, guardianship is often temporary. But if parents have passed away, a court can grant permanent guardianship over a ward. In this case, guardianship generally lasts until a minor is 18 years old. There are a few reasons guardianship could end prior to an 18th birthday.
This could include joining the military, marriage, entering a registered partnership, a guardian no longer being willing or able to carry out his or her duties, etc. Appointing a guardian is an important part of your Estate Planning process.
Physical custody means you have physical control of a minor during a defined time period. For example, with divorced parents, one parent may have visitation rights that gives them physical custody during their time with a child, but they may not have primary custody of a child. The same person can serve as custodian and guardian. The Uniform Transfers to Minors Act is a model law that has been adopted by almost every state and the District of Columbia to help control the transfer of assets to minors.
Under the UTMA, parents can choose an adult custodian to manage property or specific accounts inherited by a minor child. Prior to UTMA, custodians were required to obtain court approval for any actions taken regarding any accounts or inheritances held for the child. Since UTMA, custodians are permitted to make financial decisions for the child without seeking approval, provided the decisions are in the child's best financial interest. This statute shifts the custodian's loyalty to the child as opposed to the court.
Accounts set up under UTMA can hold nearly any kind of asset, including real estate. Parents should take the time to choose guardians and custodians. They should also commit these choices to writing in a will—whether done on their own, with an attorney, or with the help of an online legal service provider —to ensure their choices are both known and respected in the unlikely event of their death while the children remain underage.
This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.
Guardian vs. Understanding the Role and Responsibility of a Guardian A guardian acts in the place of the parents if the parents die. Guardians raise the children and make all parenting type decisions, which may include: The religion the children are raised in, if any The summer camps the children attend The schools the children attend Afterschool activities Medical and dental care decisions Parents often expect a guardian to eventually adopt the children, thus transferring them from being wards of the guardian to being the children of the adoptive parent.
Understanding the Role and Responsibility of a Custodian The custodian, sometimes called a property guardian, is in charge of a minor child's inheritance until they reach a certain age. Courts consider various factors, including: The geographical location of potential guardians Their employment Mental and physical health Their ability and willingness to continue to connect the children to both sides of their extended family Planning Ahead In many ways, every family is different.
Incapacitated adults who have lost their mental acuity can be assigned a guardian. The process of appointing a guardian can be long and complicated. Typically a conservatorship is more appropriate when kids are involved and when at least one parent of the child is still alive. Guardianship comes into play when both parents are deceased, in the case of a child, or when the subject of the proceeding is an incapacitated adult. For example, consider a child with special needs under divorced parents: a conservatorship proceeding would determine who has custody of the child.
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