A guardian of a minor child is someone who acts in the best interests of the child, just like a parent, with regards to the child’s support, care, education, health, and welfare. Guardians can be appointed for various reasons, including instances where the natural parental rights have been severed, the child has been abandoned, or the natural parents become incapacitated to the extent someone else needs to step in and care for the child. This article is intended for situations where the natural parent(s) become incapacitated but still have a vested interest in who takes care of their minor child(ren).
A guardian can be an individual, or it can be an entity such as a private or public fiduciary. Although, public fiduciary’s typically do not act as guardians to minors. The guardian of a minor is generally determined by a person whose appointment will be in the best interest of the minor. If you are preparing documentation to nominate a guardian in your will, there are some important factors to consider. For instance, can the appointed guardian actually serve, are they legally and physically able to be a guardian, do they have similar interests and beliefs to you with regards to raising your child, do they have children of their own that might be affected by the guardianship, will they be able to afford to act as guardian for you child? While this list is not extensive, it provides some insight as to who you might choose to appoint as guardian in your will.
Arizona Revised Statute §14-5202 allows for testamentary appointment of a guardian for a minor. The statute states that a parent, or parents, may appoint, by will, a guardian of an unmarried minor. Because of this rule, it is a good idea to name a guardian for each of your children. You can nominate the same person for each child or you can nominate a different person if you choose. Your will should clearly spell out for each child who you appoint even if it is the same for all your children. Generally the court will accept this appointment, although Arizona Revised Statute §14-5203 does allow a minor child to object to a testamentary appointment by filing a written objection with the court. Because of this, it is often a good idea to leave instructions in your will of not only who you appoint as guardian, but also why you chose them. This will be helpful to the court in the event the choice is challenged.
Before the court will appoint a guardian, the individual being must provide background information to the court to prove they are capable and that appointment would be in the best interests of the minor. Such information may include, but is not limited to, any felony history, prior times the person acted as a guardian for someone, fingerprints and other personal information.
If you have minor children, appointing a guardian in your will is definitely a consideration you need to make. Appointing someone who has the appropriate time, consideration and resources to take care of your children if you become unable is no easy task. Platt & Westby has offices in Phoenix, Arrowhead, Litchfield Park, Scottsdale and Gilbert Arizona. If you have questions about appointing a guardian in your will, or if you would like us to review your current estate plans, contact our office by calling 602-277-4441 or www.plattwestby.com for a free consultation with one of our experienced attorneys.