This article will help families deal with an important, but too often neglected, reality of estate planning: thinking ahead to what might happen to their children should the parents pass away before they are of age. It includes the discussion of:
- How guardianship is established for your minor children in the event of your demise,
- How guardianship can be brought up and/or challenged in court, and
- The importance of choosing a temporary and permanent guardian for your children.
What Happens To My Minor Children In The Event Of Our Demise If No Estate Planning Has Been Done?
If you have the misfortune to pass away before having completed the key documents needed to plan for your estate, a probate court proceeding would have to be opened to deal with the succession.
During this proceeding, one of the most important issues, in addition to dealing with all of your property, wealth, and even debt, the court would appoint a guardian for any minor children you leave behind. In Louisiana, this guardian is called a tutor.
If you do not wish the court to choose a tutor for your children in the event of your unfortunate passing before they are of age, it is vital that you establish guardianship documents prepared with the help of experienced and specialized estate planning attorneys.
What Is The Estate Planning Tool Parents Need To Ensure Minor Children Will Be Cared For By The Chosen Guardian After Their Death?
Luckily, given the importance of the question of caring for your minor children after your death, it is relatively easy to integrate your wishes for their guardianship in your estate planning process.
If you prepare a will or a trust or any kind of properly established estate plan with the help of an attorney, you can easily designate the people that you would want as guardians for your children.
This can also be done in a separate document called a guardian nomination form that your estate planning lawyers can draft for you.
Can The Guardian I/We Choose Ever Be Challenged?
While it is quite rare, there are certain circumstances in which guardianship, even one established by the wishes of the parents, can be challenged in court. To do so, someone would have to prove that the person you nominated is inappropriate or unable to care for the child.
However, the court is always going to try to honor your wishes, so it would take a lot to overcome that presumption. Nevertheless, the court has to act in the best interest of the child, and if there are sufficient grounds then perhaps even you would have wished that the guardianship be changed.
Ultimately, if there is a valid reason for this person not to be your child’s guardian, then it can be challenged in court. For example, if the current guardian had a criminal conviction or was convicted of fraud, then obviously the court wouldn’t want that person in charge of your children, and neither, probably, would you.
Can The Child Bring It Up In Court? Is It Possible For The Child To Have A Representative?
Your child may decide that they wish to contest or have a say in the guardianship decision at some future point, though it is rare. They can receive legal representation for this, which we call a curator-appointed lawyer. They get an attorney appointed by the court that represents their interest in the event of such a proceeding.
How Do I Choose And Plan Guardianships For My Minor Children?
When considering the question of guardianship, there are two key choices to make.
Who Should I Choose As A Temporary Guardian For My Minor Children?
The first question to establish is that of temporary guardianship. For example, if both parents are in a car accident on the way home and they are both taken to the hospital, no one shows up to pick up the kids at school. What happens? That is where the temporary guardian would step in, and it is an easy failsafe to set up. For this, you want someone who can get to your children within even as little as 20 minutes.
With a simple document you can designate which people are allowed to have temporary custody or temporary guardianship over your children in the event of an emergency. This is essential, especially if you live far away from your family, and have good friends that can step in temporarily until whomever it is who you want to be a permanent guardian can step in. Though in some cases your temporary and permanent guardian choices may be the same.
Who Should I Choose As A Permanent Guardian For My Minor Children?
The second case is a more permanent choice of guardian. This is the person, or family, which will take care of your children over a much longer period if necessary, while you recover, or permanently, in the event of your demise. This can be someone who lives much further away, and the most important considerations are choosing someone you trust entirely, and who, if possible, your children already have a certain familiarity to ease what is inevitably a very difficult transition and situation.
With the help of an experienced estate planning attorney, neither permanent nor temporary guardianship is difficult to establish or change. But the consequences of not doing so can be disastrous or traumatic for you, and especially, for your children.
For more information on Estate Planning For Minor Children In Louisiana, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (225) 465-1090 today.
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