News & Commentary

If one of the primary goals of estate planning is to have your wishes carried out, even when you are incapacitated or deceased, that requires choosing people to act on your or your children’s behalf as you intend. When you can’t speak for yourself, who can you count on to speak for you? You have a choice: you can either leave it to chance, or you can create certainty.

Guardianships

Parents with custody of unmarried children under 18 years of age have guardianship rights. These rights include those vital decisions that parents make for their children, such as where they live, what schools they attend, with whom they associate, their medical care, and their religious training. Because all unmarried children under the age of 18 are required to have guardians, the courts must appoint guardians for those children who have no custodial parents. Just as parents are accountable for their children’s upbringing, so too are court appointed guardians.

The Probate Code defines the standards that judges use in deciding who will be the children’s guardians. While the first priority is to a surviving parent, the next priority is to those persons who have been nominated by the parents to act as guardians. This priority is higher than the claims of anyone else, regardless of whether they are related to the children. If parents have not made a written nomination, a judge can appoint any “interested person” as long as it is in the best interests of the childThe Probate Code defines the standards that judges use in deciding who will be the children’s guardians. While the first priority is to a surviving parent, the next priority is to those persons who have been nominated by the parents to act as guardians. This priority is higher than the claims of anyone else, regardless of whether they are related to the children. If parents have not made a written nomination, a judge can appoint any “interested person” as long as it is in the best interests of the child.

When parents have not made a written nomination, the children may need to be placed into foster care, or have a temporary guardian appointed, before a permanent guardian is in place. If competing petitions are filed, as can happen without nominations, there can be lengthy delays. I have seen many instances where relatives file conflicting petitions that are resolved only after protracted and often bitter litigation. Minor children already have a tough time with the loss of a parent. They don’t need the added anxiety of wondering where or with whom they will live.

While judges work very hard to evaluate your children’s best interests, they do not have the insights that you, as a parent, possess. No one knows your children, or your philosophy about child rearing, as well as you. Nominating the caretakers for your children means that you choose the people that will carry on for you and your children. Don’t avoid this opportunity!

Conservatorships

Estate planning includes planning for both death and incapacity. Incapacity planning includes nominating those people who will act for us if we are unable to manage our financial resources or properly provide for our personal needs. This includes appointing people to act as our agents under powers of attorney for financial affairs and health-care decisions, and nominating conservators if our disabilities become grave enough.

A conservator is a court appointed individual who manages the financial affairs and/or the personal care of one who is either physically or mentally unable to handle either or both. When a conservatorship is established, it shifts the responsibility of making decisions about financial and personal care to the conservator, and it limits the conservatee’s ability to act on their own finances and personal care. The powers of a conservator typically include the ability to enter or void contracts, buy and sell assets, manage your investments, consent to your medical treatment, and dictate where you live, such as either at your home or in a managed-care facility. The conservator steps into the shoes of the conservatee on the most fundamental decisions.

As with guardianships, the Probate Code establishes preferences as to who shall be appointed. The first preference is the person that you appoint in writing. Next in priorities are a spouse, a person nominated by a spouse, domestic partner or relatives. However, it is possible for a petition to be filed by any “interested person” to be appointed as your conservator. This includes not only your relatives and heirs, but also your creditors or any other person claiming to have a property right in or claim against your estate!

- The Estate Planning Law Team
  Rogers Sheffield & Campbell, LLP

This article is not intended to provide legal advice. For legal advice on any of the information in this post, please contact us directly, use the form to the right or contact us by phone at 805-963-9721.