Naming Guardians for Your Children

If you have minor children your first estate planning question is probably, “Who will take care of them if I die?” Naming a guardian for your child is a major decision. There are a number of things you need to consider before making your choice.

Guardianships and Wills

A guardian is someone appointed to care for an unmarried child under the age of 18. Under Michigan law, a custodial parent has the right to appoint a guardian through a last will and testament or any similar writing signed by the parent in the presence of two or more witnesses. It is generally a good idea to include a guardianship appointment in your will, since that document has to be filed with a Michigan probate court upon your death.

Considerations in Naming a Guardian

You do not have to name a relative as your child’s guardian. Indeed, there may be cases where that is impractical or inadvisable. For example, if your only living relative is your 85-year-old mother, you may not want her to care for your 5-year-old son.

You also do not need to name someone who currently lives in Michigan as the guardian. However, naming an out-of-state guardian may involve additional legal proceedings in that person’s home state. Your estate planning attorney can advise you on this subject.

It is also a good idea to name an alternate or backup guardian in your will. Remember, a will may be signed years before your death. In the interim, the person you named as guardian may not longer be available. Or your nominee may simply refuse the assignment– a person is not legally obligated to accept a guardianship.

Finally, make sure your child and the potential guardian get along. In Michigan, a child age 14 or older has the legal right to object the appointment of a guardian. The court may overrule the objection, but it will still be necessary to hold a hearing.

What If I Do Not Name a Guardian?

If you fail to make a valid guardianship appointment before you die, a relative or interested person–including the child, if he or she is at least 14–may petition the court to appoint a guardian. That means a judge will make a final decision based on your child’s “best interests.” Of course, the person the judge selects may not be who you would have named.