Using a Will to Appoint Guardians for Children.

One of the most important aspects of estate planning for parents of minor children is appointing alternate guardians. In the event you pass away and the child has another living, custodial, and competent parent, they will become the sole guardian.  But if not, you need to name someone to take over the raising of your child.

In most circumstances, we suggest naming one specific person rather than a couple. Under Connecticut law, a parent who is a guardian of a child may, through their Will, appoint a person to be the guardian of their child after their death. This written appointment is extremely important, as it will speak for you when you are unable to do so. The authority is found in Section 45a-596, which provides:

Sec. 45a-596. Parental appointment of guardian or coguardian of a minor upon death of parents.

(a) The parent of an unmarried minor, except a parent who has been removed as guardian of the person of the minor, may by will or other writing signed by the parent and attested by at least two witnesses, appoint a person or persons as guardian or coguardians of the person of such minor, as guardian or coguardians of the estate, or both, to serve if the parents who are guardians of the minor are dead. If two or more instruments, whether by will or other writing, contain an appointment, the latest effective appointment made by the last surviving parent has priority. Such appointment shall not supersede the previous appointment of a guardian made by the court of probate having jurisdiction.

(b) The ward of such a guardian may, when he or she is over the age of twelve, apply to the court of probate in which such ward resides for the substitution of a guardian or coguardians of the person to supersede the appointed guardian. The court of probate may, upon such application and hearing, substitute the guardian or coguardians chosen by the ward to be the guardian or coguardians of the person of the ward after consideration of the standards set forth in Section 45a-617.

(c) A parental appointment becomes effective when the guardian’s written acceptance is filed in the court in which the nominating instrument is probated, or, in the case of a non-testamentary nominating instrument, in the court for the probate district where the minor resides. Any guardian or coguardians appointed pursuant to this section shall receive the appointment subject to the control of the court of probate and subject to the provisions and restrictions to which the last surviving parent, as guardian, was subject at the time of such parent’s decease. If the court deems it necessary for the protection of the minor, a guardian or coguardians of the person shall furnish a probate bond. A guardian or coguardians of the estate shall furnish a probate bond. Upon such acceptance of guardianship or furnishing such bond, the guardian or coguardians shall have the same power over the person and estate of such minor as guardians appointed by the court of probate.

Is there still a need for a court order or court application?

Yes. A court order is needed to confirm the appointment. An appointed guardian would likely immediately step in to take care of the child and then apply to the court for a court order confirming their legal guardianship. For this reason, it is critically important to discuss your appointment with the person named in advance. It is also worth noting that it is possible that others could step forward to contest a guardianship application.

When the court makes an order regarding guardianship, they are required to “take into consideration only the best interests of the child”. Your appointment in your Will would be considered by the court and given considerable weight. A written appointment in a formal legal document allows the court to understand your wishes (especially since you are unable to be there to articulate them yourself). However, the court cannot confirm a guardian appointment without first considering whether such appointment is in a child’s best interests.

Disclaimer: The information provided in this blog post is for general purposes only and must not be considered legal advice. For specific legal advice, please consult an attorney directly.

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