Who Will Care for our Children?

Naming a Guardian for Minor Children:

All parents worry about what would happen to their children if both parents died. This concern draws many people to lawyers’ offices to start the estate planning process.

If one parent dies or becomes incapacitated, then usually the surviving parent will retain sole custody of any children, unless special circumstances exist. If both parents die, then usually there must be a court action to appoint a legal guardian for the children.

In such a proceeding, the court will always look first to the desires of the parents, preferably expressed in a written Nomination of Guardian. The court is required to appoint a nominated person as guardian unless this would not be in the best interests of the child.

Of course, it is very important to carefully consider who would be the appropriate guardian of your children. Consider many options: will this person be able to care for your children until they are 18 or 21? Even if one person is suitable, might there be an even better choice?

Be sure to ask your “nominee” if they would agree to care for the children if something happened to both parents. Don’t risk putting someone in the awkward position of first learning of your nomination after you die. Even the most supportive and caring friend or relative may have good reasons for declining to take on the burden of caring for more children.

You should also nominate alternate choices for guardian, in case your first nominee is later unable to take your children.

Caregiver’s Authorization Affidavit: For short-term care situations, the California legislature enacted a new law in 1994 (Family Code Section 6550). A non-parent caregiver can complete the new “Caregiver’s Authorization Affidavit” to enroll children in school and to obtain medical treatment for the children. This form can avoid the need for formal guardianship proceedings where a parent is temporarily unable to care for children. Formal guardianship is still preferable if the parents have substance abuse or mental health problems, or if custody or visitation disputes are anticipated.

Protecting Children via Guardianships: During the past several years, I have handled a number of guardianships under unpleasant circumstances, usually because the parents have substance-abuse problems. In these cases, I usually represent a grandparent or aunt of the children; the guardianship is intended to protect the children from neglect or abuse by the parents.

If you or a family member is in this situation, it is vital to obtain legal advice. If the caregiver cannot afford legal advice, contact your county’s Volunteer Legal Services Program (for example, the Alameda County Bar Association’s Volunteer Legal Services Corporation, at 510-893-1031) Note that some public benefits, including AFDC and Medi-Cal coverage, are often available for the children even if the caregiver’s own family does not qualify.

Legal guardianship is essential if there is any risk that the parents might seek to reclaim the children for reasons that are not in the children’s best interests (for example, in order to qualify for AFDC or other public assistance benefits, with a substantial risk that the money will be mismanaged or used to buy drugs or alcohol).

A non-parent caregiver faces all the stresses of a parent, plus the extra load of dealing with both the children’s anguish and the parents’ guilt and anger about the situation. I urge all my clients in this situation to seek counseling and support groups to deal with the unique pressures of their circumstances.

Special Issues for Divorced Parents

After divorce, if either parent dies, then the surviving parent will normally have full custody of the children (even if the deceased parent had primary custody). If one parent believes that the other should not have sole custody, advance planning is essential so that other family members are prepared to petition the court for a guardianship in the event of the custodial parent’s death.

In addition, if a deceased parent fails to name a “guardian of the estate” for any property left to a child, the surviving parent will normally be entitled to manage and control the money. Since many marriages fail because spouses do not agree about financial matters, many divorced parents prefer to nominate a different person to manage the child’s money. (Generally, the use of a trust or custodianship is preferable to a court-supervised guardianship. )