Estate Planning is really people planning. You aren’t planning for your estate but rather for the people you leave behind. Some of the most important people to plan for are your children.
In the event of the death or incapacity of the surviving parent of a minor child or an incapacitated adult child, that child will need a guardian, and the law allows you to select the person you want the Court to appoint as guardian.
There are two types of guardians: a guardian of the person and a guardian of the estate. A guardian of the person is in charge of providing for the day to day needs of food, clothing, shelter and medical care. A guardian of the estate is in charge of managing the money and property of the person needing a guardian. Both types of guardians are appointed by the Probate Court and are supervised by the Probate Court.
You can select the person you want to be guardian of your minor or adult incapacitated children in your Will or in a separate document called a Declaration of Appointment of Guardian for my Children in the Event of my Death or Incapacity.
The Court supervision of a guardian of the person requires the guardian to submit annual reports which can usually be done without a lawyer.
The Court supervision of a guardian of the estate is much more extensive and requires court authorization and approval of all investments and expenditures. For this reason, it is usually advisable to create a trust for the management of the child’s property, which can be done as part of your Will or separately.
You should discuss people planning for your children and the other important people in your life with your estate planning attorney.
Robert Morris is an attorney with Hammerle Finley Law Firm and practices estate planning and probate. Mr. Morris has practice law for over 40 years. He can be reached at 972-436-9300 or via e-mail at legaltalk@hammerle.com.
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