Understanding Nominations of Guardian for Minor Children in Three Easy Steps

Answering some frequently asked questions about setting up a Nomination of Guardian for Minor Children in California

If you have children under 18, you need to put in place a Nomination of Guardian for Minor Children. If you pass away or become unable to look after your children, this document helps determine who takes charge. This document provides peace of mind and reduces the risk of your children ending up in the foster-care system. Setting up a Nomination of Guardian for Minor Children is one of those “to-do” items that needs to be prioritized. The saying, “Mend the roof while the sun shines!” applies here.

  1. What is the role of guardian for minor children under California law?

The role of guardian is divided into two parts:

a. Guardian of the person, and

b. Guardian of the estate.

The same person can fill both roles. The guardian of the person looks after the child - physical custody, daily lifestyle, welfare, medical decisions, choosing schools, encouraging religious practices (or not). The guardian of the estate looks after the child’s assets - such as, money inherited from you.*

  1. Can I nominate a guardian in my Will

Yes, but…

It is tempting to insert a nomination of guardian clause into your Will and call it a day. The problem with this approach is that Wills do not come into effect until after you are dead. So, if you become incapacitated (for example surviving a car crash, with a blow to the head, so that you can no longer make decisions for yourself) a separate document nominating a guardian ensures your wishes are known, despite no longer being able to speak up for your child’s best interests.

  1. Who should I nominate?

If you want your child to stay at the same school and be looked after by your best friend, rather than be moved to out-of-town relatives whom the child hardly knows, the Nomination of Guardian provides you with a voice when you can no longer speak for yourself.

Do you have a suitable family member/friend such as an accountant or a teacher who might take on your child in extremis? In addition to considering how closely related the guardian is to the child, judges often prefer people with professional qualifications, who are more likely to be in the habit of following prescribed codes of conduct.

Ultimately though, the child’s best interests govern here. The judge can override your stated wishes if the child’s best interests lie elsewhere.

If you are nominating a guardian who lives outside California, consider appointing a local temporary guardian to avoid your children entering the foster care system. Adding some commentary about why it is in your children’s best interests to be moved out-of-state can help the judge make a favorable order.

  1. What else should I include in a Nomination of Guardian for Minor Children?

    a. Maintaining family relationships

It is usual to include wording about allowing the children the opportunity to maintain relationships with the wider maternal and paternal families.

b. Religion (or none)

You can also set out what religion (or none) you would like your child to practice while growing up. Alternatively, you can comment on what moral or spiritual guidance you would like to have instilled in your child.

c. Guardian moving into child’s residence

A statement allowing the guardian and his or her family to move into a residence belonging to your child - which may be held in trust - can be useful. This will facilitate your child continuing to live in your current family home. You can include wording allowing the guardian’s family to live there without paying rent.

d. Health insurance

You can also state that health insurance should be provided, which could mean that your child is included in the guardian’s family plan, with a contribution from the child’s funds for his or her portion of the payment.

Considering these issues prior to consulting with an attorney can save you a lot of money. Becoming an informed, prepared consumer will help you set up the ideal Nomination of Guardian for Minor Children for your family. Putting the right estate plan in place is an important step in taking responsibility for those you love and ensuring your family thrives through crises.

*However, some of your child’s assets may not be managed by the guardian. Two examples are:

  1. Assets held in a trust (managed by the trustees), or

  2. Assets held in a UTMA custodial account (managed by the custodian).

The trustee or custodian might be the same person as the guardian, but that person will be acting in a different capacity for assets held in trusts or in UTMA accounts, and be subject to slightly different rules.

Find out more about Busy Wills, Inc. at: busywills.com.

Contact Attorney Elizabeth Botsford at: elizabeth@busywills.com.

DISCLAIMER: This article is written for educational purposes only. It does not contain any legal advice. It is not possible for Busy Wills, Inc. or Attorney Elizabeth Botsford to provide you with legal advice because neither Busy Wills, Inc. nor Attorney Elizabeth Botsford know your specific circumstances. Reading this article does not create an attorney-client relationship. No-one is a client of Busy Wills, Inc. or Attorney Elizabeth Botsford unless a conflict check has been undertaken and a retainer agreement has been signed.

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