If the other Parent of my Child is still Alive, why should I designate a Guardian for the Child in a Last Will and Testament?

In modern times it is almost uncommon to have a traditional ‘nuclear’ family – where Husband and Wife have been married only to each other, they still live together, and they have all their children by each other. Instead, for estate planning, it is often the case that a mother or father will have sole custody of a child where the other parent is not in the household. Or one parent has shared legal custody but primary physical custody is in the other parent. Some parents without custody are intensely involved with the day-to-day life of the child but others, voluntarily or not, may see their child rarely or not at all.

The custodial parent will generally understand that when he or she dies, ‘the law’ requires that the other legal parent automatically gets custody of the child. That, in general, is true as a starting point. For that reason, some parents will assume that in the event of death, there is no reason to designate anyone as guardian to care for the child.

In reality, every parent of a minor child should have a provision in his or her Last Will and Testament to designate at least one person, and hopefully a series of choices, to care for and raise the child until the age of majority is reached. A separate provision may be needed for the money which may be left for the benefit of the child but that person (a Trustee) is not necessarily the same person as the Guardian who takes the child into his or her household. A Trustee should be able to invest and supervise money issues. A guardian is a hands-on parent.

So, why should a guardian be designated if the law favors the other legal parent of a child? There are several thoughts which come to mind:

• The other ‘non-custodial’ parent may have died or become legally incompetent at the point of death of the custodial parent.

• If there is not a close relationship between the child and the surviving legal parent, it may not be in the child’s best interests to be torn from the home at the same time as losing a mother or father to death. How fair is it for a child who has not seen his non-custodial mother or father for a number of years to be suddenly told that he must give up all friends, school ties, home and nurturing environment and go live with this stranger?

• The ‘non-custodial’ parent may not be fit to raise the child.

• There may be other siblings who have been raised with the child who have other parents, yet it is best for the children to remain together.

• The surviving parent may not come forth to ask for the child or make arrangements. Some men and women who are biological parents may have no desire to actually be parents, particularly after years of separation from child-raising.

• There may be a step-parent who has been the equivalent to a real biological parent who is in the home and emotionally prepared to continue raising the child.

What if by Will, a parent designates someone other than the surviving legal parent as guardian of the child? If the legal parent comes forward and is fit, then the designation will be a gesture without legal effect. If there is a need, however, and the legal parent should not be the person physically raising the child, then by designating a guardian you are allowing a person you trust to intervene to challenge the placement and even bring a court action if needed. This is especially true because at present Step-parents have no legal rights, even if they have been instrumental in raising the child for years.<

Why name more than one? Because the first guardian you designate may be in the midst of a personal crisis at that time you die. If that person is not then able (due to their own death, other health problems, economics, marital crisis or otherwise) to care for your child, then it is only reasonable that you voice your second choice. The younger your child is at the time of your death, the more likely that conflicts or changes may arise where your designated guardian should have the chance to say ‘no’ if necessary.

Choosing a guardian for your minor child or children is very important and can legally be done through your Last Will and Testament. Failure to make a choice can leave your child at the mercy of a Court system which favors blood relatives on the basis of the nearness of the relationship -- regardless of the qualifications. It is not unknown in Georgia in a contest between relatives after the death of a mother or father (where no Will names a guardian and no other legal claimant comes forward) for the Judge to select the oldest living blood relative (a grandparent or great-grandparent) even where there is some more able sister or brother with small children of their own who could be raised with the grieving child. This is a circumstance where planning ahead is more complicated but more imperative than merely setting aside money for the child’s potential college tuition.

Writing the words which make up a Last Will and Testament may be a simple procedure, and one which can be accomplished with software or ‘fill in the blank’ forms. However, the decisions needed to understand and plan for the unique personal choices which should be reflected in a Will may be best handled with the guidance of a qualified professional. Any person with a small child or an aged parent may wish to update his or her Last Will and Testament so that the family, as opposed to the money, is well cared for in the event of a death or catastrophe.

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