2. Guardianship of Minor Children
If you have a minor child, who would care for him or her in the event that you died or became incapacitated? Would it be someone you deem to be in the best interest of your child, or would it be someone whom a court deems to be in the best interest of your child?
If a child has two parents and only one dies or becomes incapacitated, the surviving parent will be the natural guardian of the person of the minor child. The surviving parent will also be entitled to be appointed the guardian of the minor child’s estate.
However, if a minor child is orphaned as a result of his parent’s death or incapacitation, a guardian will be appointed by the court. Selection of the guardian will be affected by whether the deceased or incapacitated parent designated a guardian for his minor child in his will or other written declaration.
If no guardian is designated for the orphaned minor child by the deceased or incapacitated parent’s will or other written declaration, it is up to the court to select a guardian. The court will select a guardian based on the following framework:
a. The nearest ascendant in the direct line of the minor will be appointed guardian of both the person and the estate of the minor;
b. If more than one ascendant exists in the same degree in the direct line, only one ascendant will be appointed guardian, considering the circumstances and best interest of the minor;
c. If the minor has no ascendant in his direct line, the nearest of kin shall be appointed, and if there are two or more persons in the same degree of kinship, only one person will be appointed guardian, considering the circumstances and best interest of the minor; and
d. If the minor has no relative eligible to be his guardian, or if no eligible person applies to be the minor’s guardian, the court will appoint a qualified person as guardian.
If a guardian for the orphaned minor child is named by the deceased or incapacitated parent’s will or other written declaration, the court will appoint the named person as guardian upon finding that person eligible to serve as guardian.
So who would look out for the well-being of your minor child if something happened to you? Putting a plan in place now will help to ensure that you have a say in the selection of your minor child’s guardian, should one become necessary.