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Legal Guardianship - Why and How

Legal Guardianship – Why and How

November 11, 2015 Davis Law Group

You’re having a baby – congratulations!

There’s so much to plan for: a nursery, where to deliver, maternity and paternity leave, showers, and . . . legal guardianship?

Although it’s a difficult thing to consider, all parents should have their legal guardianship plan in place when their child comes into the world. Having a plan for legal guardianship means that your wishes will be carried out and that your child will be taken care of, regardless of what happens to you and your spouse.  

According to the Commonwealth of Virginia, a Guardian of a Minor is a person who has obtained legal authority to be responsible for managing financial and/or personal affairs of a minor. There are three types of Guardianships of Minors:

  • Guardian of the Person (which is appointed by a Judge)
  • Guardian of the Estate (which is appointed by the courts or the Clerk)
  • Testamentary Guardian (which is whomever is named in a Will for both personal and/or the estate of the minor)

It’s important to note that all guardianship can be determined by the parents of the child or by the state (i.e. a judge) depending on what, if any, paperwork has been filed. If parents do not create a Last Will and Testament that clearly defines and names a Legal Guardian (of person, estate or both), then the court and a judge will decide on their behalf. Generally, the next-of-kin will be given guardianship, depending on if they are willing and able. Next-of-kin usually means grandparents, but if a child has two or more sets of grandparents, court cases and legal battles are likely to take place. Aunts and uncles would be the secondary choice, and again there may be several sets that may fight for guardianship if it is not clearly defined in a legal document that holds up in court.

Many parents may assume that telling a particular family member or friend that they would like them to care for their child if anything should ever happen to them is enough to guarantee their child is taken care of, but the truth is that unless that information is properly drafted in a legal document, their wishes may not be upheld.

Parents can avoid sending their families into legal war by creating a Last Will and Testament that clearly defines who the Guardian of the estate and Guardian of the person should be. In many cases, parents may want this person to be the same person, but there are some situations where the Guardian of the estate (the person in charge of the minor’s finances) and the Guardian of the person (the person in charge of the minor’s health and well being) may be different. We all have family members who would take great care of our children, but may not be the best at managing their finances and the estate we leave to them. Others of us may have the perfect guardians in mind who would be great at both the emotional and financial side.

This issue is so important and critical to the welfare of your children that it makes the most sense to use a qualified attorney to ensure all paperwork and legal requirements are in place. Most of us do not want to think about the possibility of not being able to raise our children into adulthood, but for their sake these decisions should be made in advance so that no matter what happens, they will be taken care of and loved.