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Jerry Kessler: Guardians: Who will have custody of the kids?

Posted: June 18, 2009 7:55 p.m.
Updated: June 19, 2009 4:55 a.m.

One of the most difficult questions facing people who need a will or trust is, "Who will take charge of our minor child if something happens to me and my spouse?"

In legalese, we're talking about the nomination of a guardian for the person and estate of the minor child.

The guardian of the person is typically a nonparent who will have custody of the child and will make parental decisions, including those involving the child's upbringing, schooling and medical care.

Usually, if either parent dies, the other parent automatically takes custody of the child, except in such cases as those in which the surviving parent has been enjoined from exercising custody or visitation or is otherwise unavailable or unable to serve.

Nomination of a guardian of the person of the child, ordinarily made in the last will and testament, is not binding on the court, which will exercise jurisdiction over the guardianship of a parentless minor.

Nevertheless, such nomination lends what may be considerable moral force to the judge's decision.

After all, who understood the child's needs better than the parent, who also knew the capability of the nominated guardian?

The guardian of the child's estate holds the child's money, typically in a blocked account which the guardian may not access without court order until the child becomes 18 years of age.

What money of the child would be subject to guardianship? It might be the proceeds of a gift, under the Uniform Gift to Minors Act, or an inheritance that was not held in trust, or the proceeds of an accident settlement or judgment, or the child's earnings, such as from acting in a motion picture.

Unless there is an obvious candidate at hand, such as an aunt or uncle or a close family friend who is available and willing to serve, the question of guardianship is most vexing.

After all, no matter who you are and what your educational or cultural background may be, no one would be as good a parent to your child as you are. No one knows your child as well as you.

Some people get so stuck on the guardianship issue that they neglect to do anything at all about completing a will or trust.

Unfortunately, doing nothing is sometimes a final decision, one which often leads to results which totally fail to carry out the decedent's wishes.

The best course may be to make a list of all the possible guardian candidates, pick the best ones, ask their consent to be nominated and put your wishes into effect in your will.

Then reconsider your list periodically and make changes whenever more suitable candidates or alternates appear.

Jerry Kessler practices law in Valencia He can be reached at (805) 255-1001. His column represents his own views and not necessarily those of The Signal. "It's The Law" appears Fridays and rotates between members of the Santa Clarita Valley Bar Association, Nothing contained herein shall be or is intended to be construed as providing legal advice.


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