The nomination of a guardian should enter the picture when you are planning your estate as a parent of a young child. Who would take care of your children if you and the other parent were to pass away together in an accident? What if you are a single parent? Who would become the caregiver if you were to pass away?
You answer these questions when you nominate a guardian. This is something that is typically done when you create your last will.
The court is not absolutely compelled to appoint the individual that you nominate to act as guardian, because the well-being of the child is the thing that is most important to the court. However, it is extremely likely that you would nominate someone that the court would approve of, so the person that you nominate would probably wind up being the guardian.
Younger Adults Often Remiss
Many young adults put estate planning on the back burner. This is a mistake, especially when you are the parent of a young child.
There are those who look at estate planning as something that is only relevant for senior citizens. It is certainly true that the likelihood of death increases as you become older.
However, senior citizens usually do not have dependent children still residing in their homes. The children of senior citizens are going to be grown-up, self-supporting adults in their own right.
On the other hand, the children of younger adults are indeed going to be minors that are still dependent on their parents for everything. Because of this, one could contend that estate planning is more important for younger people than it is for older adults.
In a very real sense the stakes are higher. Transferring financial assets is important, but making sure that minor children are taken care of is certainly a higher priority.
Guardianship comes into play when you are planning your estate for another reason. You may go through a period of incapacity before passing away. It may become impossible for you to make sound decisions.
If you do not take action to name your own representative in advance, the state could be petitioned to appoint a guardian to act on your behalf.
The person who is chosen by the court may not be someone that you would have selected. Plus, there can be disagreements among family members during guardianship proceedings.
You can take the matter into your own hands by executing the appropriate incapacity planning documents. A durable power of attorney is typically used to name a hand-picked decision-maker of your own choosing.
Once you have this legally binding device in place, you eliminate the need for a guardianship hearing.