Naming Guardians for Your Children

August 12, 2016

By:  Olivia R. Holcombe-Volke, Associate – olivia@elvilleassociates.com, 443-393-7696

It is common in meeting with clients who are either pregnant or have young children to learn that their driving motivation in contacting an estate planning attorney is to make sure their children are taken care of in the event that they (that is, the parents) die.  These clients should be applauded for addressing this important detail, rather than leaving it to chance.  As with all estate planning documents (such as Advance Medical Directives, Financial Powers of Attorney, Last Wills and Testaments, and Revocable Living Trusts), the main point is self-determination.  The law will generally step in and fill in the gaps, but leaving any decision up to the legal system is leaving it up to the determination of what’s important in the view of the legislature, and in the judicial discretion of the courts, and in the subjective opinions of those who choose or are able to participate.  For most parents, this is not the preferred method for determining who will care for their children in the worst case scenario when they are not alive to do so themselves.

In Maryland, the guardian of a minor may be appointed by the Last Will and Testament of the parent.  This testamentary appointment need not be approved by any court.  However, in the absence of a Will naming the guardian, a minor child (that is, someone under the age of eighteen (18) years old) who becomes parent-less will be subject to the proceedings of court, open to guardianship by any person who petitions the court for that role.  Again, if asked, most (if not all) parents would prefer to be the ones to determine who will care for their children if they are not alive to do so themselves.

If you or someone you know is a parent to a minor child, make sure the necessary documents are in place to address this vital detail in a worst case scenario situation.