Minors of Deceased Parents

Typically, parents hold natural guardianship over their biological children under 18 years of age. Once the child reaches adulthood at 18, this guardianship naturally concludes, allowing them to make independent legal decisions.

However, if both parents are deceased, an alternate guardian must be designated. Parents can preemptively plan for this scenario in their estate plans by selecting a guardian. Failure to do so may result in court-appointed guardianship, leading to various complications:

• The court-appointed guardian may not align with the parents’ preferences for their child’s care.
• Family members might engage in legal disputes over custody, causing stress and potentially fracturing relationships.
• Guardianship proceedings entail legal expenses.
• Court-appointed guardians must seek court approval for many actions and submit detailed annual reports until the child reaches adulthood.
• Upon turning 18, the child inherits any remaining estate, regardless of their readiness to manage it.

To circumvent these issues, parents can designate a guardian in their will and establish a trust for the child, ensuring they receive their inheritance at an appropriate age. A trustee can manage the estate until the designated time.

A Child With Cognitive Disabilities

As previously mentioned, parents typically hold guardianship over their child until the child reaches 18 years of age, a responsibility that extends to children with cognitive disabilities. Should you have reservations regarding your child’s capacity to self-care or make sound decisions, you have the option to petition the court for guardianship over the child. Additionally, you can designate a successor guardian to assume this role after your passing or if you become unable to fulfill it.

Other Reason a Minor Child Would Need a Guardian

They typically involve the child’s biological or adoptive parents’ absence or lack of ability. Potential situations include:

• Abandonment
• Parents’ mental or physical incapacity
• Parents’ absence, such as due to incarceration
• Parents’ inability to provide a stable or safe home
• Abuse or neglect by one or both parents
• Parents’ substance abuse or addiction problems

Individuals afflicted with dementia often struggle to make sound decisions or adequately care for themselves. Refusal of assistance or care can pose significant risks.

If you’re worried about the capacity of an aging family member or cherished individual to make reasoned choices, legal guardianship affords you the authority to act on their behalf.