Nominating Your Children’s Guardian

Little girl making card for her mom with her grandmother near by

For clients who have minor children, one of the most sensitive estate planning decisions is who to nominate as their children’s guardian. Here are a few things to consider when making this decision.

Generally speaking, the Court will confirm as guardian whomever the parents nominate in writing. If the parents left differing guardian nominations, the Court will confirm the guardian nominated by the last parent to die. Any court’s appointment of guardian, even one based on a parent’s written nomination, is subject to the “best interest of the child” standard.

When a child turns twelve, the child has the power to consent or refuse to consent to an appointment of guardian. As such, it’s always important to consider an older child’s preferences.

If the parents failed to nominate a guardian, then the Court will accept petitions from interested parties. A judge will then sort through these petitions and make a determination based on the best interest of the child. Note that if the child is twelve years or older, §15-14-206 requires the Court to appoint a guardian nominated by the child unless such nomination is contrary to the child’s best interest.

A parent’s failure to nominate guardians can cause serious confusion during an already tumultuous time. If you have minor children and haven’t yet nominated their guardians, contact us today.

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