What happens when parents pass away leaving a minor child? Unfortunate situations may arise when surviving relatives fight for the custody of a minor child. Or maybe worse, if there isn’t a friend or relative willing to take the role, the child may end up in foster care while the Court determines what to do.
So what is a guardianship? The Court will appoint a guardian to care for people who cannot take care of themselves. A guardian has legal responsibility for the care and management of the minor and/or the minor’s property.
In Ohio, a testator (the person creating the will) may nominate a guardian for his or her minor children. Keep in mind, this is merely a nomination. The Court will consider (and generally) appoint the nomination, but the actual appointment is ultimately the Court’s discretion. The Court will consider the best interest of the child. A natural, living parent will generally trump any guardianship nomination or other third-party rights. The Court likes to keep the child with the natural parent. However, if there is no living natural parent or the natural parent is considered unfit to care for the minor, a guardianship nomination will typically be effective.
As mentioned, A guardianship can be for the person (the child), the estate (the property), or both. These roles have legally separate functions and can demand very different qualities in a guardian. Consider managing money vs. managing a child. When considering a guardianship nomination, a parent should consider both of these roles separately. However, naming the same person for both roles will reduce the administrative burden; less paperwork is always better.
So where would one nominate their guardian? Typically, a guardianship provision would be found in a will. However, many individuals choose to set up a trust and elect to have a trustee care for minor children. There are important benefits and some detriments to both options which I will discuss in a later post.
But for now, what would a guardianship nomination look like? A guardian provision in a will can be as simple as, “if a guardian of the person or property is necessary for any minor child of mine, I nominate my spouse, to be the guardian of the person and property of any my minor child of mine. If my spouse shall be unable or unwilling to serve, I nominate my brother to be the guardian of the person and property of any minor child of mine.” Lastly, many times a testator will waive a bond requirement (sort of like insurance).
MoneyManeuvering 