Guardianship

Protecting children through proper Guardianship provisions in estate planning documents is the most important decision that a young family can make.

Most young parents choose to undertake Estate Planning out of a desire to control who shall take care of their children. This can be done through a Revocable Living Trust or a Will, depending on how in-depth the parents want to be in creating an Estate Plan. But to understand how Guardianship works, a grasp of terminology is in order.

Under the law, a Guardian is the person who has the care and custody of a minor (a person under the age of 18). The Guardian is usually responsible for the education, support, and maintenance of the minor (also known as the "Ward").

The Guardian will also typically be the Conservator of the minor. The Conservator is the person who cares for the financial affairs of the minor (also known as the "Protectee").

If both parents die prematurely without establish a proper Estate Plan, then a court will determine who shall serve as the Guardian and Conservator of their children. The court, as required by Missouri statute, will appoint a Guardian/Conservator based on the "best interests of the child," and will look at factors that include the suitability of the person nominated, and the desirability of providing custody arrangements for the care, custody, and control of the minor which minimizes the stress and disruption of placing the child in foster care.

To avoid this undesired court-ordered result, Missouri recognizes the authority of the parent of any minor child to designate a Guardian/Conservator through a Revocable Living Trust or Will. Any testamentary instrument which includes Guardianship Provisions will control under Missouri law, and a court cannot interfere except for in extenuating circumstances.

So, once you establish the need for Guardianship Provisions, the next important step is to determine who is best suited to serve as Guardian/Conservator of your children. You should look for three main qualities in making this determination: (1) the person's temperament, (2) their attitude toward raising children, and (3) their ability to handle their finances. These qualities are important because not only will that person be in charge of raising your children, but they will also be responsible for providing for the economic well-being of your children.

To learn more about Guardianship, or to discuss other Estate Planning arrangements for your family, please contact Vince Taormina, a child guardianship lawyer and estate planning attorney with The Taormina Firm.

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Vince Taormina is an experienced St. Louis estate attorney who works with ordinary families to educate them on the benefits of having an estate plan.

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