One of the most common concerns we hear from clients who are parents with minor children is:

How do I appoint a guardian for my children if I die while they are minors?

What most clients fail to realize is there are actually two types of guardianship to consider. 

First: Permanent Guardianship after Parents’ Death

Parents may appoint a guardian for their minor children in each of their Last Will & Testament.  It is important to note Wills are individual documents (i.e., each person drafts his or her own Will), so each parent should create a Will that contains a guardian appointment for his or her minor children.  When one parent dies, and if there is a surviving parent with parental rights, the surviving parent takes full custody of the children and the deceased parent’s appointment of guardian will not become effective (unless the judge determines that there are legitimate reasons that the noncustodial parent is unfit).  If the surviving parent dies while his or her children are still minors, the surviving parent’s guardianship appointment will prevail.  Thus, most married parents and even some who are not married will appoint identical guardians in both of their Wills so that the same individual will be appointed guardian of their children regardless of which parent dies first.  Please note that you may select a primary choice for guardian, along with back-up choices in the event your first choice is not available to act.

Second: Temporary Guardianship during Parents’ Incapacitation

Contrary to appointing a guardian for your children in the event of your death, you should plan and appoint who will take care of your minor children if you are alive but incapacitated (e.g. if you suffer a stroke, are in a coma, develop Alzheimer’s or dementia).  The nomination and appointment of a guardian in your Last Will & Testament (see discussion above) may be evidence of your intent that the person nominated in these instruments serve as guardian upon your incapacitation. The appointment cannot be made directly by your Will, however, because your Will does not become valid until your death and until your Will is admitted to probate court.  The better practice is for each parent to have a separate document appointing guardians for their minor children in the event of incapacity.  Similar to the appointment of guardian made in your Will, you may also select a primary choice along with back-up choices in the event your first choice is unavailable to act.  It is our practice at La Grasso, Abdo & Silveri, PLLC to make this temporary appointment in your Durable General Power of Attorney.

The attorneys at LAS Law understand that these are tough decisions, but we are here to help.  We encourage all of our clients, even those with minor children, to do some pre-planning to give them peace of mind.