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It’s something that most parents do not want to think about - “What happens to my child if I am no longer able to take care of them?”  This article stresses why you should take action and plan for the worst case scenario to actually give you peace of mind that your wishes will be known.

Life changing events typically prompt one to think about altering legal documents such as life insurance beneficiaries, bank accounts and payable on death documents, retirement beneficiaries, wills, trusts, powers of attorney documents, etc.  Life changing events may include births (including adoption), death, marriage (or re-marriage), divorce, and change in financial status.

Often, clients fail to take action when life changing events occur due to the assumption that the documents or designations will be difficult to change, alter or create and if legal work needs to be done, it may be costly and time consuming.  However, to worry about the unknown in regards to the care of a child is unnecessary if a parent is proactive and plans for unknowns.

Create a Last Will and Testament

It’s a responsible thing as a parent to create a Last Will and Testament when your child is born.  It is also a good idea to update your Will when life changing events occur.  In the Will, parents can designate a legal guardian for the minor child.  

North Carolina law provides if both parents are deceased then a Petition for Guardianship of a minor child may be filed with Superior Court-Special Proceedings Division in an attempt for the Petitioner to be named as the legal guardian for the child.  A Guardian ad Litem is appointed by the court as a temporary representative for the minor child to investigate the Petitioner’s request to the Court.  The Guardian ad Litem speaks for the child’s best interest and wishes so the child’s needs are heard without unnecessarily exposing them to the Court. The Guardian ad Litem is also an investigator for the Court and is only released from her duties as the Guardian ad Litem upon the court’s appointment of a Guardian for the minor.  

A named Guardian for the minor child would thereafter receive “Letters of Appointment” and a Court Order which is used to prove the legal ability to act for the minor child until the child reaches the age of majority at age eighteen (18).  A Court appointed Guardian is authorized to make arrangements for the legal care, custody and control of the minor child as would a natural parent and be thereafter responsible for the educational, religious, legal, medical and day-to-day decisions for the child.

The intent of a parent is memorialized in her Will and shown to the court as probative evidence of the wishes of the parent for her child. The Court must vet the Petitioner’s motives and ability to act as the child’s legal guardian but the parent’s wishes are more commonly adopted by the Court and help the named Guardian in their step to complete the legal appointment and obtain the necessary legal paperwork.  Parents who pass without a Will leave the appointment of a Guardian of a minor child up to the fate of a Court without any guidance from the parents.

Family Law and One Living Parent of a Child

If one parent dies and the other parent is alive, the parent living would have custody of the child absent a court order determining child custody to a non-parent for reasons such as unfitness of the parent, willful absence of the parent such as jail or deportment, unwillingness of the parent to act as a custodian, etc.  While alive, if the legal parents had been separated there might have been a legal contract or Court Order establishing custodial terms for the co-parenting. If the primary parent having custody under those legal documents dies, the living parent has standing to first act on behalf of their child as the now primary parent.

A parent’s constitutional right to act for their child’s well-being would trump any moving party (potential Guardian named in a Will, family member, close family friend, foster parent, etc.) in a court proceeding. This type of action would occur in District Court as a family law matter related to child custody.  A Guardian ad Litem is not typically appointed by the courts to investigate in this setting.

5 Steps to Choosing a the Right Legal Guardian for Your Child

So, how does a parent determine who is the right person to act for their child if they are unable? 

First, have a conversation with the other parent about planning for the future if you haven’t already put some of these legal documents in place. Discuss what documents need to be updated or established. 

Second, define what you would look for in a potential Guardian for your child.  Think of what needs your child has, not only at their current age but through to early adulthood. Pretend you have the conversation with your child about who they would want to care for them if you were not able.  

Third, make a list of potential Guardians.  Only list the contenders based on a fit with the needs of your child and the potential Guardian’s morals, values, personality, ability to parent, and other characteristics or traits that are important to your family. The potential Guardian does not have to be a relative.  Consider if the candidate is financially stable but don’t cross the person off the list if there is a question here; you can invest in life insurance or provide otherwise for the child if the Guardian will need financial assistance.

Fourth, have a serious conversation with the candidates still on your list about the role of a Guardian.  After these conversations you might cross some candidates off your list and the designation order may become clearer.

Finally, memorialize you decision with a legal document.  The Guardianship provision for the minor child would be in a Will but also could be referenced in a Trust and/or Power of Attorney.  Tell the Guardian what legal  document(s) they are named in and provide the Guardian with a true copy of the legal document.  Instruct the potential Guardian to keep the document in a safe place such as a fire-proof safe at their home or in a safety deposit box at a bank.  Also give the potential Guardian a certified copy of the child’s birth certificate and copy of the child’s social security card. These items can be difficult and time-consuming to obtain by a non-parent but are helpful if the time comes to request legal Guardianship with a Court.  Lastly, if your child is old enough to discuss death and a potential Guardian tell them who would be there for them if his parents could not (in an age-appropriate manner conducive to your child’s maturity).

Call Wilmington, NC Family Lawyers for Help with Tough Decisions

No parent wants to think about someone else raising their child.  To establish peace of mind, a parent should plan for the unknown. Take the time to walk through the above five (5) steps so that you protect your child. You can take steps now to ensure that your child receives the future you have imagined for them.  If you need assistance in reviewing your current documents or preparing documents to name a Guardian for your minor children, call Craige & Fox, PLLC today at 910-815-0085.

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Craige & Fox, PLLC
701 Market Street
Wilmington, NC 28401
910-815-0085 Phone
910-815-1095 Fax

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