Introduction

 

According to the American Bar Association, approximately 55% of Americans do not have a will, leaving their loved ones vulnerable in the event of their passing (American Bar Association, 2020). One of the most critical aspects of a will is naming a guardian for your children. In this blog post, we will explore the importance of naming a guardian, the consequences of not doing so, and provide actionable tips and examples to ensure your children's well-being.

 

Section 1: Understanding the Role of a Guardian

A guardian is responsible for the care and upbringing of your children in the event of your death or incapacitation. This includes making decisions about their education, health, and welfare. A guardian can be a family member, friend, or even a professional guardian.

 

Actionable Tip: Name a guardian who shares your values and parenting style to ensure consistency and stability for your children.

 

Mistake to Avoid: Failing to consider the guardian's ability to provide financially for your children.

 

Example: In the case of In re Marriage of DeLaubenfels (1996) 44 Cal.App.4th 1174, the court appointed a guardian for the children despite the father's objection, highlighting the importance of naming a guardian in your will.

 

Section 2: Consequences of Not Naming a Guardian

If you do not name a guardian, the court will appoint one, which may lead to:

 

• A stranger raising your children.

 

• Family conflicts and disputes

 

• Delays in decision-making for your children's care

 

• Potential separation of siblings

 

• Increased stress and trauma for your children

 

Actionable Tip: Name an alternate guardian in case your first choice is unable to fulfill their duties.

 

Mistake to Avoid: Assuming that a family member will automatically be appointed as guardian.

 

Example: In the case of In re Guardianship of Joshua S. (2012) 209 Cal.App.4th 150, the court appointed a guardian despite the mother's objections, highlighting the importance of naming a guardian in your will.

 

Section 3: California Law and Statutes

In California, the court's primary consideration when appointing a guardian is the best interests of the child (California Probate Code §1510). The court may also consider the child's wishes if they are 14 years or older (California Probate Code §1511). Additionally, California law requires that a guardian be at least 18 years old and a legal resident of the United States (California Probate Code §1500).

 

Section 4: Examples and Scenarios

• Example: Sarah, a single mother, names her sister as guardian for her two children. She also names a family friend as an alternate guardian in case her sister is unable to care for the children.
• Scenario: John and Maria, a married couple, fail to name a guardian for their three children. In the event of their death, their parents and siblings engage in a bitter custody battle, causing emotional distress for the children.

 

Section 5: Additional Considerations

When naming a guardian, consider the following:

 

• The guardian's relationship with your children

 

• The guardian's ability to provide a stable and loving environment.

 

• The guardian's values and parenting style

 

• The guardian's ability to make decisions about education, health, and welfare.

 

• The guardian's financial stability and ability to provide for your children.

 

• The potential impact on your children's inheritance and assets

 

Section 6: Public Case Examples

 

• The case of In re Guardianship of Dylan R. (2014) 224 Cal.App.4th 1146 highlights the importance of naming a guardian in your will, as the court appointed a guardian despite the mother's objections.

 

• The case of In re Marriage of DeLaubenfels (1996) 44 Cal.App.4th 1174 demonstrates the potential consequences of not naming a guardian, as the court appointed a guardian despite the father's objections.

 

Section 7: Probate Statutes and Connected Ideas

 

• California Probate Code §1510: The court's primary consideration when appointing a guardian is in the best interests of the child.

 

• California Probate Code §1511: The court may consider the child's wishes if they are 14 years or older.

 

• California Probate Code §1500: A guardian must be at least 18 years old and a legal resident of the United States.

 

• California Family Code §3040: The court's primary consideration when determining custody is the best interests of the child.

Many times, naming a guardian in your Will is just the starting point as we look at what those nominated will need to execute on the duty like a power of attorney to check children in and out of school and deal with other life situations. Moreover, we include a healthcare power of attorney so that the guardians can seek medical treatment for a child whilst they await full confirmation from a court to be affirmed as the “legal guardian.”

Naming a guardian for your children in your will is crucial to ensure their well-being and stability. By understanding the role of a guardian, avoiding common mistakes, and being aware of California law and statutes, you can make informed decisions about your children's future. If you need guidance on naming a guardian or creating a will, contact the Law Office of James Burns at (949) 305-8642 or visit www.jamesburnslaw.com. With over 24 years of experience, James Burns can provide expert advice and support.

 

Additional Resources

• American Bar Association: "Estate Planning" (www.americanbar.org/groups/estate-planning)
• California Courts: "Guardianship" (www.courts.ca.gov/guardianship)
• California Legislature: "Probate Code" (leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PROB&division=4.&title=1.&part=2.&chapter=1)

FAQs

• Q: Can I name a guardian for my children in a trust?
  A: Yes, you can name a guardian for your children in a trust, but it is also important to name a guardian in your will.

 

• Q: Can I name a guardian for my adult children?
  A: Yes, you can name a guardian for your adult children if they have a disability or are unable to care for themselves.

 

• Q: Can I change my named guardian?
  A: Yes, you can change your named guardian by updating your will or trust.