LEGAL ADVICE—Guardianship

By on August 1, 2017
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By Elizabeth L. Wynn

 

Guardianship

 

Over the years, I have often wondered how many young parents really think about who will take care of their children if they are unable to do so. Parents spend countless hours planning everything from college to swimming lessons, but never seem to think about who would assume guardianship of their minor child if unforeseen events occur in their lives.

 

Often I tell people that elder law is not just for those with gray hair and grandchildren. It includes estate planning for parents of young children who can benefit from a consultation with an elder law attorney to discuss the need for a provision naming a guardian.

 

As a parent of a minor child, it is imperative to legally designate a guardian in the event something happens to you. A guardian is the person who will be responsible for raising your child in your absence, and there are a number of factors to consider when choosing this person. In Mississippi, the most effective way to ensure that your guardianship choice is honored is through the probate of a valid Last Will and Testament in the Chancery Court.

 

Determining who will be the guardian is profoundly personal. To be sure, this is probably the most important and most difficult part of the estate planning process for parents. Including future children is important and often overlooked. You should not limit your wishes to cover only present children. If you do, you run the risk of unintentionally separating siblings, or leaving room for contention in your family after your death. If you are among the few that have done this planning, examine your Will and make sure it mentions all children, present and future.

 

No one can tell you exactly what factors are important, because the things my husband and I consider important for our son may not be the same factors other parents consider important. There are also circumstances that may be present in your family that we did not have to take into account.

 

I will tell you to carefully consider both present and future circumstances of the potential guardianship candidates, as well as what is important for your children. Consider age, health, financial circumstances, and geographical location of the likely guardian. After you have narrowed the choices down to a few, consult with those people, and make sure they are willing and able to serve. If your children are old enough, you might want to consider their preferences and input. Also, do not limit your final choice to just one person. You need to name a primary and secondary guardian in your Will. It is important to always have a contingency plan in estate matters.

 

It is almost impossible to even imagine someone other than you or your spouse raising your child. But it can certainly happen, and you must ensure that your choice is preserved accurately according to Mississippi law. When your estate plan does not name a legal guardian, the decision will be made by a Probate Court, which may not coincide with your and your family’s wishes.

 

When you really think about it, this person will be in charge of your child’s overall upbringing, including personal beliefs, morals, values, and educational development. Can you think of anything that warrants more of your time and attention? I certainly can’t.

 

 

 

Elizabeth Wynn is a member of the National Academy of Elder Law Attorneys and practices law in Ridgeland. She and her family live in Madison.