Do I need to appoint a Guardian? As long as one parent is living, he or she will presumably be able to provide love, personal care, and financial support for your minor children if you or your spouse dies. On the death of the second parent, or if both parents should die simultaneously, legal arrangements need to have been made (Guardianship Nominations) to continue meeting your children’s personal and financial needs, otherwise a Court will appoint a Guardian for on your behalf. Therefore, Guardianship Nominations are imperative if you have children under the age of 18 who are not legally married or emancipated.
There are two types of Guardians: Guardians of the Person and Guardians of the Estate.
Guardians of the Person
Responsible for providing personal care and supervision for your minor children.
Appointment of a Guardian of the Person
Careful thought should be given to the selection of a Guardian of the Person as he or she will largely be responsible for the upbringing of your minor children and acts as a surrogate parent in their care and custody.
Love and Support
The Guardian of the Person will be the person to whom your children will look for love and emotional support. Due to the personal nature of the Guardianship relation, parents should consider the potential guardian's ability to accept so great a responsibility, their continuity of love and affection for your children, the age and heath of the potential guardian, amongst other factors in selecting a Guardian of the Person.
A Guardian of the Person is not is not legally obligated to support your minor children with his or her own personal funds. He or she is also not responsible for managing any property your children own or pass to your children as a result of your death. Rather, the Guardian of the Person will be reimbursed for providing food, shelter, clothing, health care and educational expenses from the nominated Guardian of the Estate or Successor Trustee.
Guardians of the Estate
Responsible for management and conservation of the property that passes to your minor children.
Appointment of Guardian of the Estate/Successor Trustee
A Guardian of the Estate or Successor Trustee needs to be appointed to manage the assets that pass to your minor children because (1) minors are restricted by law in their ability to death with property and (2) children often lack the necessary knowledge and sophistication to handle their financial affairs.
Guardian of the Estate vs. Successor Trustee
Although proper estate planning always nominates a Guardian of the Estate, often it is the case that holding assets passing to you children in trust and appointing a Successor Trustee to manage these assets are a preferable method of estate planning. Trusts for your children can easily be structured to provide for flexible management over your children's assets as they are too young or incapable of managing their financial affairs. This allows for the security of your children until they are mature enough to mange their own finances. A Guardian of the Estate must often obtain court approval for distributions to your children resulting in greater delays and expenses whereas a Successor Trustee can be given broad discretion to take into account an individual child's needs when making distributions of trust income and principal.