What Is A Guardian/Conservator?
You should be aware of three types of guardianship, sometimes called conservatorship:
Adult Guardianship - Guardianship of the Estate
This type of guardianship refers to the court process that protects your property if you are unable to care for your possessions.
This process occurs after you have become incapacitated or incompetent. Someone, usually a relative or friend, must petition the court for this type of guardianship. The court hears the facts, and it will appoint a guardian if it finds that you are physically or mentally unable to manage your own affairs.
Some states allow you to select a guardian in advance through a durable power of attorney or other legal document, but generally you will have no choice about who will be appointed. Although the courts generally appoint a close family member, someone who is not qualified (or who does not care) may be appointed, a situation you should try to avoid.
Adult Guardianship - Guardianship of the Person
Like guardianship of the estate, guardianship of the person refers to the court process that protects you if you are unable to personally care for yourself (i.e., it allows the guardian to make personal and medical decisions only). This process occurs after you have become incapacitated or incompetent. Someone, usually a relative or friend, must petition the court for this type of guardianship. The court hears the facts, and if it finds that you are physically or mentally unable to care for yourself, it will appoint a guardian.
Again, if you do not name a guardian of your own choice in advance, the court will make the decision for you, whether you agree with it or not. Naming a guardian of the person can be a difficult decision. Obviously, you want to name someone you trust with your life. Make sure that the person you name is willing to take on such a responsibility. Be clear about your wishes and how you would want them to be carried out under different circumstances--to put it bluntly, when does the plug get pulled?
Guardianship for the Legal Care of Minor Children
The third type of guardianship refers to naming a surrogate parent for your minor children or their assets in the event that you and the other parent are unable to care for them. As in the case of an adult guardian for an incapacitated person, both a guardian of the estate and a guardian of the person can be nominated for minor children (these can be different people or the same person).
Normally, you nominate the guardian(s) in your will. The court has final approval, but state laws generally require the court to give your nomination the highest regard. If you do not make a provision for guardianship in your will, however, the court will name a guardian for you based on the circumstances (for example, are there any volunteers?).
Selecting a Guardian for Your Minor Children
You can nominate more than one adult as legal guardian for your child or you can name different guardians for each child, as your circumstances require. You should also choose an alternate guardian in case your first choice is unable or unwilling to take on the duties of a guardian if and when it becomes necessary.
You should select a responsible person with good character who has the time and willingness to take on the job. In some states, it is possible to specify in your will the people whom you don't want to serve as guardian for your child. It is not a good idea to include the reasons for these wishes in the will, however.
Caution: Some states limit who can act as a personal guardian for a minor child. Some states only allow married couples to serve as guardians for a minor. Check with your state or an estate-planning attorney to find out what is allowed in your state.
Choosing the Right Guardian
Choosing the right guardian may be a difficult decision. Generally, the surviving parent of a child is entitled to custody of the child should one parent die. However, it remains customary to name the other parent as the primary guardian. You should also name an alternate guardian in the event that you and your spouse should die simultaneously (in a car accident, for example). This is the choice that will be hard to make.
If you are divorced, you may want to name your ex-spouse as guardian, especially if there is already joint custody. However, remember that if you do not name your ex-spouse, that person can petition the court for custody of the children, which he or she is likely to get unless there are compelling reasons for him or her not to be named. It is a good idea to work this out in advance, if you can. If you are a single parent, choosing a guardian is even more critical, because your child depends on you alone.
Customarily, people have named parents, brothers, or sisters to act as guardians for their children. However, these people may not be the best choices to raise your children. If you started your family late in life, your parents may be elderly and unable to cope with raising young children. Your brothers and sisters may have lifestyles that make you uncomfortable entrusting your children to their care. Because family structures are not as stable as they used to be, it has become more acceptable to look outside the family when choosing a guardian. Proper planning can ensure that you make the best choice for your children.
Tip: The best guardian for your children may not be the most obvious choice. For example, your best friends may have problems of their own and be unwilling to assume the responsibility. On the other hand, you may find that a brother or sister whom you've never particularly gotten along with would make an excellent guardian.
What to Look For In a Guardian
Here are some things you may want to consider when choosing a guardian:
- Who loves and cares about your children?
- Whom do your children love and respect?
- Whom do you trust?
- Who is financially and emotionally able to take on the responsibility?
- Who is willing to take on the responsibility?
Things to Discuss With a Potential Guardian
When you nominate someone to serve as guardian for your children, you are not doing that person a favor. The person you choose will have to deal with all the parental decisions you would have had to make, as well as the additional paperwork associated with the legal guardianship status. Talk with any prospective guardian before you nominate that person and impress on that person the gravity of your request.
Discuss your reasons for the request and the financial consequences. If necessary, give the potential guardian relevant details of your estate plan (e.g., are you leaving life insurance or other financial assistance?). Discuss your wishes about how your children should be raised (that you want them to have a religious upbringing and you want them to go to college, etc.). Give your potential guardian plenty of time to think over your request carefully.
Keep Your Plans Flexible
You should review your guardianship plans yearly. Your children change as they get older, and the person who seemed right in the past may not be the right person to deal with an older child.
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