In many cases, people create trusts not to help themselves but to support their loved ones in the future. So, it’s only natural to question what happens to the trust when the creator is no longer living. The answer depends on the purpose of the trust. For a trust established to support a loved one
When your children are the center of your world, it can be very hard to force yourself to consider what would happen to them if you were no longer able to care for them. However, you will never know true peace until you have a plan prepared for their future to protect them in case the unthinkable should happen. It’s more than a document; more than even choosing someone.
At Blacksburg Law, we understand the importance of protecting your family, particularly during the formative years. We work with parents of minor children to develop workable plans to provide for a child’s care, guidance, and resources needed for their future. Knowing that your family is protected and prepared can reduce worry and enable you to move forward with confidence.
What is a Guardian?
In California, a guardian is an adult who has been given authority by the court to either provide care for a child under age 18, or manage the assets of a minor child. A single guardian can accept responsibility for both care and financial matters, or the roles can be split among two people.
In some states, an individual in charge of a minor’s finances is referred to as a conservator, but in California, a conservator is only appointed for an adult who needs someone to manage care or financial matters on their behalf. Instead, California uses the terms, “guardian of the person,” to denote a guardian for physical care of the child; and “guardian of the estate,” to denote a guardian who manages the child’s financial resources.
Guardian of the Person
The person authorized as guardian of the person provides a home for the child and is legally responsible for supervising the child. A guardian of the person assumes many of the responsibilities we associate with being a parent, such as making sure a child is going to school and receiving proper health care. The guardian of the person is expected to spend their own money to support the child if they do not receive enough money from the child’s inheritance or other sources.
Guardian of the Estate
When someone is authorized as guardian of the estate, they have a fiduciary duty to manage the child’s money in the child’s best interests and not their own interests. The child’s property must be kept separate from the guardian’s and the guardian may be required to make periodic reports to the court to ensure that the child’s resources are protected. The standards are very strict, so we often assist those who have been designated a guardian of the estate so they understand how to comply with the legal requirements. It is important to note that the guardian of the estate does not manage the parent’s financial resources that are left to the child in trust.
What it Means to Nominate a Guardian
When you nominate a guardian, you are providing written instructions about who you would want the court to appoint to serve as guardian of the person and guardian of the estate of your minor child. Your nomination does not carry the force of law, because courts always retain final authority to make decisions they find to be in the child’s best interests. However, a nomination carries great weight and the court will usually honor the choice unless there is an extremely good reason otherwise.
If you do not nominate a guardian, the court will choose based on criteria established in California law. Because the judge will not be familiar with your family dynamics, the court could choose someone you know is not suitable for the role.
Nominating a Guardian in a Will
California requires that you nominate a guardian for a child in a will. You can also nominate one or more alternates to serve. The decision of who to choose as the potential guardian for your child can be emotionally challenging. We can review some factors to consider and to help you reach a decision that aligns with your child’s best interests.
In addition to nominating a guardian in your will, the team at Blacksburg Law can also support those important conversations our clients have with their proposed guardians.
Work with Blacksburg Law to Prepare the Right Guardianship Nomination for Your Child
Although there is no way to eliminate all the worries that come with being a parent, knowing that you have the documented, workable plans in place can help reduce at least some of your concerns for the future. At Blacksburg Law, we put over 20 years of experience to work for you to help develop comprehensive plans to meet the needs of your family so that you will be prepared regardless of what happens. To get started, schedule an appointment with us today.