If you name a guardian for your children, that person can take care of your children when you die or become incapacitated;
You may name a guardian of your children in your will or other written document;
There are certain conditions that can disqualify a person from becoming a guardian.
This is the first post in a three-part series on guardianships. This post will discuss how to nominate someone to be your child’s guardian. Next week's post will explain how you may become a minor child’s guardian. The third post will describe the rights and duties of a guardian.
A guardian is a person who has the right to act in loco parentis (in the place of a parent) for a minor child whose parents are deceased, incapacitated, or unfit. If you have minor children, it’s a good idea to appoint someone to be the children’s guardian, in the event that you pass away or become incapacitated. It’s certainly a loving action that you can take to provide for your children. If you don’t appoint a guardian, then, if you die or become incapacitated, someone else may step in and become the guardian of your children – and the guardian may be someone who you don’t want to be the children’s guardian. Many clients have asked me: how can I nominate a guardian for my children?
You may appoint a guardian for your children by will, or by other written instrument. A will must be signed in the presence of two witnesses. Any other written instrument, in which you nominate a guardian, should be properly witnessed and notarized. It’s a good idea to have a lawyer prepare a document in which you nominate a guardian, to ensure that the document is properly drafted. The Persaud Law Office is willing to help you with these documents; contact us today.
If a child is born to parents who are married to each other, either parent, or both parents, may nominate a guardian. If a child is born to unmarried parents, the mother may nominate a guardian. If the father is an “acknowledged father” or an “adjudicated father”, then the father (or both the mother and the father) may nominate a guardian. For more information on how the father of a child born out of wedlock may become an acknowledged or an adjudicated father, click here.
If you nominate a guardian for your children, that person does not automatically become the children’s guardian when you die or become incapacitated. In the event of your death or incapacity, the person you nominate must still go to court and ask to be appointed as the children’s guardian. In next week’s post, we will discuss the process for going to court and being appointed a guardian.
When you nominate a guardian, you should make sure that the person is legally competent to serve as guardian. The following persons may not be appointed as guardian:
· A minor may not be appointed guardian of another minor.
· An incapacitated person may not be appointed guardian.
· If someone had guardianship over five persons, they may not have guardianship over anyone else.
· A judge may not appoint a guardian if the judge is under a financial obligation to that person. A judge may also not appoint a guardian if that person made financial contributions to the judge’s campaign to be elected judge.
· Only a person who has been a resident of Oklahoma for the past year may be appointed guardian. However, a non-resident of Oklahoma may be appointed guardian of their grandchild, brother, sister, niece or nephew.
· A person may not become guardian of a minor if they have been convicted of:
Sexual abuse or sexual exploitation of a child
Child endangerment, if the offense involved sexual abuse of a child
Kidnapping, if the offense involved sexual abuse or sexual exploitation of a child
Incest
Forcible sodomy of a child
Child stealing, if the offense involved sexual abuse or sexual exploitation
Procuring minors for participation in child pornography
Consent to participation of minors in child pornography
Facilitating, encouraging, offering or soliciting sexual conduct with a minor by use of technology
Distributing child pornography
Possession, purchase or procurement of child pornography
Aggravated possession of child pornography
Procuring a child under eighteen (18) years of age for prostitution
Inducing, keeping, detaining or restraining a child under eighteen (18) years of age for prostitution
First degree rape
Lewd or indecent proposals or acts to a child under sixteen (16) years of age
Solicitation of minors in indecent exposure or child pornography.
In addition, there are a number of other impediments, which do not automatically disqualify a person from acting as guardian. However, the Court must inquire into these impediments, and ensure that the impediments would not prevent a proposed guardian from acting in the best interest of their child. These impediments include:
· A person who has declared bankruptcy within the past five years
· A person who is insolvent (that is, is unable to pay debts as they become due)
· A person who is under any financial obligation to the ward
· A person who has a conflict of interest to the ward
· If a prospective guardian has a criminal conviction, protective order, pending criminal charge, or other civil or criminal matter, the court must inquire into the conviction, order, charge, or matter. The court may appoint the person as guardian only after the underlying circumstances do not give rise to a reasonable belief that the proposed guardian will be unfaithful to or neglect his responsibilities as guardian.
A person who is not legally present in the United States may not be appointed guardian, unless the court determines that there is no one else qualified to serve as guardian, and that appointing the person as guardian is in the best interests of the minor child. If you are not legally present in the U.S., click here for information about the Persaud Law Office’s immigration services.
Choosing a guardian for your child in the event of your death or incapacity may be one of the most important decisions you will ever make. Don’t put off this decision! Make sure that your children will be properly cared for.