Arguably, there's nothing more important than planning for the care of your young children should you pass on too soon. But unfortunately, more often than not, estate planning in Huntsville, AL, and everywhere else is something that most people tend to ignore.

However, there may come a time when important decisions must be made in your absence regarding the care for your children or another loved one you're providing care for. It can be brutal and even heartbreaking to imagine. Still, there's always the possibility—which is why estate planning and appointing a guardian is essential.

Of course, choosing a guardian for your children is no easy task. That's why you should start by learning all you can about guardianship, so you can make a better decision for the sake of your young children.

In this article, we're going to cover everything you need to know about guardianship for minor children. 

Read on to learn more.

Defining Guardianship

Legally speaking, guardianship is characterized as the process of appointing another trusted person to step in to care for your children or any other dependent should you become unable to do so yourself. Aside from children, this could include an elderly parent or another adult—family member, child, or other—who is disabled and depends on your care.

Once it's time for the legal guardian to step in, this person would assume all the responsibilities of care provided, whatever the circumstances may be. This would include the responsibility of providing housing, education, food, and other basic needs such as clothing and meeting any medical needs of the minor or individual in question. 

Ultimately, a guardian is a person who is chosen to fulfill the caretaker role. They are given the fiduciary duty to act on behalf of those to provide care for and are expected to always act in their best interest. This means they must also make sound financial, medical, and legal decisions on behalf of the children or individuals in their care 

(Just so there's no confusion, it should be noted that guardians are sometimes referred to as conservators in the state of Alabama. Both terms mean the same thing and hold the same responsibilities).

Additionally, when we talk about a guardian's "responsibilities," it all comes down to whether they are the guardian of an individual or the estate. While the guardian of an individual would be responsible for the custody and care of that individual, a guardian of an estate would be solely responsible for managing finances and the affairs specified in your estate plan. 

The role of a legal guardian is an incredible responsibility and obligation, so it's critical to choose your children's potential guardian wisely

Types of Guardians

It's also important to mention that there are a few different types of guardians you can choose from for the care of your children. Depending on how old your children are and what their needs are, these are your available options:

• Full guardianship. Full guardianship entails taking on 100% of the responsibility in decision-making and authority over your children, including financial, legal, medical, and other decisions.

• Limited guardianship. A limited guardian would only be responsible for special needs. Those needs could be simply relegated to healthcare responsibilities or even property needs.

  
  Joint guardianship. Joint guardianship typically means that there will be more than one guardian appointed for care, each typically with a set number of responsibilities.

Guardianship vs. Custody vs. Adoption

While custody is often used concerning guardianship roles, it's essential to understand that guardianship is not the same thing as having custody over a child or children. It's also not the same concept as legally adopting.

First and foremost, legal guardianship is often relegated to someone who is not a child's biological parent, such as a close friend or relative. Custody is legally defined as a percentage of care by a biological parent. 

For example, when a parent is deemed "unfit" for the role of parenthood, the state may step in and appoint a legal guardian giving said guardian a certain amount of custody. However, the parent or parents usually still maintain their legal parental rights.

In other words, guardianship is designed to be a temporary legal relationship to provide care for the child or children in question. However, the biological parents will typically still be obligated to support their child financially or, when it comes to estate planning, should provide the necessary funds for their chosen guardian should something unfortunate happen.

In terms of guardianships versus adoptions, it should be noted that adoptions are a final event. In an adoption, the parent-to-be legally assumes the child as their own, which terminates the biological parents' rights and obligations to that child. Once an adoption has been finalized, the biological parents no longer have the right to visitation with the child or any other rights regarding the child's care.

Becoming a child's guardian does not, under any circumstances, mean that the appointed individual will become the child's legal parent. Instead, the guardian gets a certain percentage of custody over the child, which allows them to make decisions and provide care on their behalf but does not give them actual legal rights to the child.

What a Guardian Can and Can't Do

When Does Guardianship End?

When someone agrees to be a potential future guardian for your children, they essentially agree to a contract. Like all contracts, their legal authority can expire or become terminated automatically following certain events.

For example, the terms of guardianship may be set up for a one-year time frame. In this instance, there would be a specific date upon which the guardian's legal obligations end automatically. 

Of course, most often, the period of guardianship remains open-ended until one of the following events occur:

• The guardian decides to resign

• The child reaches legal age and is no longer a minor (usually at the age of 19 in Alabama)

• Either the child or the guardian dies

• The child's inheritance or assets have been depleted

• A judge decides that the guardianship is no longer needed 

• A judge determines that the guardian in question is not meeting the child's needs or is no longer serving their best interests. In this case, the judge will likely appoint a different legal guardian from the state or choose a capable relative  

Ultimately, guardianship is meant to last until the child can take care of themself as an adult. If the child has special needs, you may need to find someone to provide long-term care or arrange for long-term housing in a special needs facility. 

How and When to Choose a Legal Guardian

Put simply, there's no wrong time to appoint a legal guardian for your child or children. An experienced Huntsville attorney would encourage you to nominate a legal guardian as soon as you begin your estate planning to ensure you're prepared for the worst. If you're wondering when you should start your estate planning, they'd likely tell you as soon as you decide to have children and start a family.

Other times to consider narrowing down your options for a potential guardian would also include the following:

• Before you decide to travel for the first time without your children

• As you begin aging, usually once you become middle-aged

• As you're planning your healthcare directives

• Before any major medical procedures or treatments

• After filing for a divorce

• During the time of re-marrying

• If your already-appointed legal guardian suddenly becomes ill or unable to fulfill their obligations for any other reason

Remember, as long as you have a child or children, it's never too early to include a legal guardian within your estate plan.

Appointing a Guardian as Part of Your Estate Plan

Determining who would be the best fit as a legal guardian can be overwhelming. It's hard to imagine anyone other than yourself caring for your children. Here are a few steps you can take to help you get started:

• Determine the type of guardianship that will be needed. If you're planning for the worst-case scenario, it'll likely be a full-time guardian

• Discuss your option with your spouse if you have one

• Before finalizing your decision, discuss it with the person or people you've chosen. Taking on the duties of guardianship is an incredible responsibility, so you'll want to ensure they're up to the task, are available, and willing

• Discuss the options and obligations with your Huntsville attorney to ensure you haven't left anything out

• Clearly define the role and responsibilities of what you would expect from the guardian 

No parent wants to think about their children being forced to grow up without them. However, being prepared in case, an unfortunate event will leave you with peace of mind knowing that your children will be in good hands.

Planning for the future is the best gift you can give your children. Contact us today to speak with Sarah S. Shepard or another experienced Huntsville attorney so we can help you arrange that gift.