Testamentary Guardianship: Every Parent should have one!
Sometimes death is the furthest thing from our minds, however it can happen unexpectedly. Every parent should have a plan in place if they were to die, including a last will and testament, a living will, and a testamentary guardianship. This post will discuss the testamentary guardianship and the great importance associated with having one.
A testamentary guardianship is when a parent (s) of a child designate (s) another person to care for their child in the event of their untimely death. This guardianship can be created in an estate planning document such as a will or a trust. This can ensure the child is cared for by someone the parents choose to take on this great responsibility, rather than having the court appoint someone. If both parents are living, they must both nominate the legal guardian, and consent is should be obtained by the nominated guardian; the court will probate the testamentary document before the appointment takes place.
Q. I am a married parent, should my spouse and I have a testamentary guardianship in place?
A. Yes. Every married couple should have a testamentary guardianship in place.
Although it may seem likely that one parent will survive the other in the event of one spouse's death, it is not always the case. It is possible that both parents can die simultaneously. For example, simultaneous death may occur in a transportation accident or a natural disaster. Spouse's usually travel together in an automobile on a regular basis, which may increase the possibility of this type of occurrence. For the above reasons, it is recommended that married couples should have a testamentary guardianship in place to protect the future of their children.
***If the parents die simultaneously, and their wills nominate different guardians, the court will determine which guardian will be appointed based on the best interests of the child.
Q. I am a single parent, should I have a testamentary guardianship in place?
A. Yes. Every single parent should have a testamentary guardianship in place.
A single parent who is widowed may establish a testamentary guardianship on their own. However, if the other parent is alive, the single parent should get the consent of the other parent to avoid the risk of the court invalidating the testamentary guardianship. Parents cannot use a testamentary guardianship to interfere or sever the parental rights of the other surviving parent. The courts will likely view the testamentary guardianship as a "nomination" not a "designation" because they will not interfere with the parental rights of there other surviving parent.
Typically, courts will defer to the parents designation of legal guardian in their will or trust because it is the last wishes of the deceased parent, and that person knew what is in the best interests of the child.
In sum, every parent should plan for the future well being of their child in the event of death of one or both of the spouses. A testamentary guardianship can ensure who will parent your child in the event of your death. Otherwise, the court will appoint a guardian for your child who may have not been your choice.
Joseph M. Cammarata Esq.
Call me for assistance in setting up a testementary guardianship, a will, or a living will.