LaBre on Law: Testamentary guardianships

By Robert W. LaBre, J.D.

Editor’s note: All characters and conversations are fictional, and are used only to illustrate points of law. Any similarity or resemblance to real persons or events is purely coincidental.

“We also want to make sure that our children are taken care of if something happens to both of us before they come of age,” the wife said.

I had a married couple sitting across from my desk, planning the distribution of their estate in the event of death. They were in their mid-30s, living in Michigan, with four children. The children were between ages 1 and 7.

The husband worked full time at a local manufacturing company, where he was provided a life insurance policy as part of his employment.

The wife worked at home raising their children, and on a part-time basis she worked as a receptionist at a local business.

“Have both of you agreed on who will take care of your children?” I asked.

“Yes, we both want them to be with my husband’s brother at first.” The wife said.

“If he can’t take care of the children, then we want them to be with my sister.”

The husband nodded his affirmation.

Looking at both of them, I said, “Both of you can appoint a guardian for your children in your respective wills. If both of you pass away before your children reach 18, then the guardian need only file with the court where the will is probated, a copy of your will, to prove the appointment, as well as his or her acceptance in order for the process to begin.”

“What’s a guardian?” The husband asked.

“A guardianship is where someone other than the parents of a minor child has the power to make decisions on the child’s behalf before the child reaches 18.” I replied. “In essence, the guardian takes on your roll in your absence: enrolling the children into school, signing consents for medical treatment or obtaining health insurance, for example.”

“Is our appointment guaranteed to place our children with the person of our choosing?” The wife asked.

“No,” I said. “Once a child reaches 14, he or she can object to a parental appointment of a guardian. In addition, any person interested in your children’s welfare may object to the guardianship.

“If either of the previous situations arise, the court will conduct an investigation and hold an evidentiary hearing before deciding who should be a guardian over your children.”

“That makes sense,” the husband said. “But how do we finance the guardianship, so that my brother doesn’t have to pay for raising our children on his own dime?”

“That a good question,” I said. “Why don’t we stop here, and reschedule an appointment for the week after next; I’ll answer your question then.”