Question: In designating guardians for minor children, in practical terms, what is the difference between ‘parent-appointed’ guardians and ‘court appointed’ guardians?

Answer:  In states which have ‘parent appointed’ statutes (about half of the states), if a person is appointed as guardian in the Will, then as they say, it becomes the nominated guardian’s job ‘to lose’.  All the parent nominated guardian has to do is show up in court and absent something extraordinary, the nominated person has the job.  The person simply has to get to court before the statutory deadline to accept the appointment.  The parent appointed guardian assumes the role as soon as both natural parents have died, eliminating any uncertainty for the minor children.  The guardian becomes permanently appointed upon court confirmation.

Actually, I suppose it isn’t a sure thing because, a court could override the appointment if the minor or another interested person objects, or if the parent’s nominee does not accept.

In court appointed states, the nominated guardian has to essentially apply for, and interview for the job.  They don’t get to show up in court and assume they will have the court’s blessing.  The court will consider an array of factors, including giving proper weight to the person(s) nominated in the Will, and other factors such as the degree of the familial relationship, the workload of the appointed guardian, geographical locations , and religious preferences (factors differ from state to state).

Comment: If, for whatever reason, the parent’s desired choice designated in the Will could be deemed a ‘bad’ choice, it is important to state in the Will why this person is the right choice in any event.

Court appointed guardian states often see more intra family disputes and unnecessary delays (in an already tragic time).

As always, if you have any questions or would like to learn more, please contact Steve Shane at sshane@offitkurman.com or 301.575.0313.

ABOUT STEVE SHANE

sshane@offitkurman.com | 301.575.0313

Steve Shane provides strategic counseling to clients in need of estate administration, charitable giving and business continuity planning while minimizing estate, gift, and generation-skipping transfer tax exposure. He offers legal guidance to clients on asset protection and the proper disposition of assets in accordance with the client’s objectives, while employing tax planning techniques such as the use of irrevocable trusts, life insurance planning, lifetime gifts and charitable trust. He is also experienced with drafting documents for business planning, the incorporation and application for exemption for Private Foundations and the administration of decedents’ estates.

ABOUT OFFIT KURMAN

Offit Kurman is one of the fastest-growing, full-service law firms in the mid-Atlantic region. With over 185 attorneys offering a comprehensive range of services in virtually every legal category, the firm is well positioned to meet the needs of dynamic businesses and the people who own and operate them. Our twelve offices serve individual and corporate clients along the I95 corridor in the Virginia, Washington, DC, Maryland, Delaware, Pennsylvania, New Jersey, and New York City regions. At Offit Kurman, we are our clients’ most trusted legal advisors, professionals who help maximize and protect business value and personal wealth. In every interaction, we consistently maintain our clients’ confidence by remaining focused on furthering their objectives and achieving their goals in an efficient manner. Trust, knowledge, confidence—in a partner, that’s perfect.

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