There is no doubt death is an unpleasant topic. Still though, it is something that needs to be discussed. Failing to do so oftentimes results in people dying intestate, or without a last will and testament. This typically means this person has also failed to execute other estate planning documents, whether that be a trust, a durable power of attorney, a health care power of attorney, a living will, or as this article discusses, a declaration of guardian for minor children clause, which allows you to designate who will be the guardian of your children while they are under 18 years of age, unmarried, and unemancipated.
When these estate planning documents are nonexistent, the laws of North Carolina will determine everything without the deceased person having his or her personal wishes considered, including how his or her property and other assets are distributed, how health care decisions are made for him or her, and of greatest importance, the person who will care for his or her minor children. If for no other reason, all parents should execute a last will and testament that includes a declaration of guardian for minor children clause so that their desires as to who will be the guardian of their minor children are heard.
What is a Guardian in North Carolina?
In general, a guardian is a person appointed by the court who cares for, and is legally responsible for, someone who is unable to manage their own affairs, such as a minor child whose parents have died. The North Carolina General Statutes outline several types of guardians. These include a guardian of the person, a guardian of the estate, and a general guardian, each of which is further defined below.
Guardian of the Person: A guardian appointed solely for the purpose of performing duties relating to the care, custody, and control of a minor child.
Guardian of the Estate: A guardian appointed solely for the purpose of managing the property, estate, and business affairs of a minor child.
General Guardian: A guardian of both the estate and the person.
In North Carolina, when both parents of a minor child die, the courts normally appoint a general guardian to care for both the minor child and his or her estate.
Do I Need a Guardian for My Minor Child?
As may have already been gathered from reading this article, yes, every parent needs to name a guardian for their minor child so that the court making the guardianship decision considers the wishes of the parent.
As many people would think, if only one of the parents of a minor child dies, the surviving parent’s parental rights as to their minor child will not be affected assuming, among other things, the surviving parent is a biological or adoptive parent that has not willfully abandoned the minor child.
Similarly, many people in North Carolina also think that if both parents of a minor child died, guardianship of their child would automatically be given to one of the child’s grandparents, aunts, uncles, or adult siblings. However, this is simply not the case. In fact, nearly anyone can step forward and ask the courts to name them guardian. Specifically, the North Carolina General Statutes state that any person, including Youth and Family Services, may make application to be named general guardian for any minor child who has no natural guardian by filing an application with the clerk that sets forth the following:
- The minor child's name, date of birth, address, and county of residence;
- The name of and date of death of the minor child's deceased parents;
- The names and address of other persons known to have an interest in the application for appointment of a guardian;
- The applicant's name, address, county of residence, relationship if any to the minor child, and interest in the proceeding;
- If a guardian has been appointed for the minor or custody of the minor has been awarded, a statement of the facts relating thereto and a copy of any guardianship or custody order, if available;
- A general statement of the minor child's assets and liabilities with an estimate of the value of any property, including any income and receivables to which he or she is entitled;
- A statement of the reasons that the appointment of a guardian is sought;
- Whether the applicant seeks the appointment of a guardian of the person, a guardian of the estate, or a general guardian;
- Whom the applicant recommends or seeks to have appointed as such guardian or guardians; and
- Any other information that will assist the clerk in determining the need for a guardian or in appointing a guardian.
Who Should I Name Guardian of My Minor Child?
To begin, North Carolina General Statutes state that if a minor child’s parent or parents have made a last will and testament that includes a declaration of guardian for minor children clause, the court shall give substantial weight to the parents’ recommendation since parents are presumed to know the best interest of their children.
Even so, while such recommendation shall be a strong guide for the court in appointing a guardian for a minor child, the court is not bound by the parent’s recommendation if it finds that a different appointment is in the minor child's best interest. As a result, it is of the utmost importance that parents carefully consider who they name to be guardian of their minor child. Some things to think about when deciding who to name guardian of your child include:
- Is this person physically healthy enough to care for your child?
- Is this person located near other family members or other friends?
- Is this person financially capable of taking care of your child?
- Is this a person your child already loves and feels comfortable with?
- Is this person emotionally able to care for your child?
- Will this person have enough time and energy to devote to your child?
- What is this person’s current family structure?
- Will this person be the person raising your child or will someone else, such as a significant other?
The person you name as guardian of your minor child will inevitably have a huge task ahead. This person must be capable of of meeting your child's emotional and physical needs and raising your child to be a competent and fulfilled adult. If the court does not believe that the person you name as guardian can accomplish these goals and objectives for your minor child, it is unlikely that they will find them to be in your child’s best interest. Thus, give careful consideration to who is best suited to fulfill this role so that the court will have no choice but to follow your recommendation as to who will be named guardian of your minor child.
Are You Looking for an Estate Planning Lawyer in Charlotte, NC?
If you are looking for wills, trusts or estate planning assistance, you need to speak with an experienced estate planning attorney as soon as possible. Please contact us online or call our Charlotte office directly at 980.207.3355 to schedule your free consultation.