Estate Planning Protects Minor Children

An estate planning lawyer can help protect your kids in two primary ways.

First, if something happens to parents, someone will need to assume legal responsibility for their care. This designation is made in your Kentucky will.

Second, a minor may own or have rights to property―for instance, through an inheritance―and someone will need to manage this property on their behalf.

What is a Guardian?

In Kentucky, guardianship law aims to care for minors, for disabled persons, and to protect the benefits owed to veterans.

A minor is a person who has not reached the age of 18. A minor with a guardian is called a ward.

In this article, I will only discuss guardianship for minors. In this context, a guardian is someone who is appointed by a court to have care, custody, and control of a minor, as well as to manage the minor’s financial resources.

Like all fiduciaries, a guardian has a duty of good faith and loyalty. Basically, this means that the guardian is responsible to the ward and may even be held liable for impropriety surrounding the ward’s property.

Limited Guardian vs. Conservator

A guardian is responsible for both the person and the property of their minor ward. These roles, however, may be segmented.

In this case, a limited guardian will be responsible for the care, custody, and control of a minor but will not have the power to manage the minor’s financial resources.

In contrast, a conservator will be charged to manage the minor’s financial resources.

This arrangement may be preferable.

For instance, if the person you would prefer to raise your child is not financially savvy. Nonetheless, care must be taken to ensure that the limited guardian will have access to the financial resources needed to care for the minor.

Choosing a Guardian

Naming a guardian should be a collaborative effort. If parents are married, then this collaboration will be a natural part of the estate planning process.

If parents are not together, then this collaboration may not be possible. In this instance, you should still express your preference for a guardian. And, you should certainly consider a conservator if you do not want your ex to be in charge of managing the money you leave to your child.

Here is a list of issues to consider when deciding upon guardians for your children.

• do they live close to rest of family;
• religious compatibility, and more generally, do they share in your values;
• proximity to your children’s friends and school;
• age of prospective guardian – aged parents may not be wise choices;
• their own family situation – do they already have a house full of kids;

How to Choose a Guardian When Spouses Can’t Agree

Suppose you and your spouse disagree on who should be named as guardians for your children if something happens to you both.

Maybe you both want your respective parents or there simply are not any good choices.

The first point to consider is that sometimes your B choice will be better than the ambiguity of a judge’s choice.

The second point is that if something happens to only you, then your spouse will be the de facto guardian of the children. If something then happens to your spouse, you will want to have expressed your wishes as to who should be the guardian. In this situation, if you and your spouse cannot agree, a court will be left to decide, with input from the two deceased spouses.

Backup & Co-Guardians

Co-guardians might be problematic if they are a married couple who end up divorced in the interim. Thus, it is prudent to name only one (and perhaps name the other as a successor) to ensure your intent is known.

As to backups, circumstances might change, and the first choice might not be available or otherwise will say no.

So, generally speaking, no co-guardians but name at least one backup.

Let Them Know

As is the case with all fiduciaries, you do not surprise anyone. This means that you should talk about the possibility of naming someone your chosen guardian and what the role will entail in advance.

Temporary Guardians & Caretakers

When parents or legal guardians are away from minors for a period of time (vacation, etc.), it is a good idea to explicitly authorize the temporary caretaker to make medical and school-related decisions.

This authorization is different than choosing a guardian.

Some thought should also be given to naming a temporary guardian in the event of your incapacity or if a lengthy absence is contemplated.