Why This Decision Matters
Few decisions weigh heavier on a parent than choosing who would raise their children if they couldn’t. It’s a question no one wants to answer, but every parent should. The idea of selecting someone to care for your children should both of their parents die or otherwise become unable to fill that role can feel overwhelming. For many parents, it’s difficult to know how to even begin answering the question of who might be able to protect, provide for, and guide their children to adulthood.
One way to approach the selection of a guardian is to think through the specific duties that a guardian will be asked to fulfill and the powers they are given.
Types of Guardians in Virginia
Virginia has laid out the duties of a guardian in statute. The law distinguishes between two types of guardians: guardians of the estate of a minor, and guardians of the person of a minor. Guardians of the estate are responsible for ensuring that the property belonging to the minor is managed appropriately and used only for purposes that benefit the minor. Guardians of the person of the minor have custody of the minor and ensure that the minor is provided with the necessities of life, as well as an appropriate education. A single person may be appointed as guardian of both the estate and the person of the minor.
Duties and Powers of a Guardian
Diving a bit more into the details, here is what Section 64.2-1800 of the Virginia Code requires of guardians:
The guardian of a minor’s estate shall have the possession, care, and management of the minor’s estate, real and personal, and, after first taking into account the minor’s other sources of income, support rights, and other reasonably available resources of which the guardian is aware, shall provide for the minor’s health, education, maintenance, and support from the income of the minor’s estate and, if income is not sufficient, from the corpus of the minor’s estate.
So, the guardian is tasked with providing for the minor’s needs, and must first look to other sources of income available to the minor before tapping into any of the money or property left to the minor as part of his or her estate.
To fulfill this duty, the guardian is given significant powers under section 64.2-1805 of the Virginia Code. For instance, the guardian may pay the minor’s expenses, maintain insurance policies for the minor’s benefit, sign legal documents on behalf of the minor, and even borrow money on behalf of the minor.
Acceptance and Court Requirements
Given the magnitude of these responsibilities and powers, a person cannot be forced to serve as a guardian against their will. The would-be guardian is free to renounce the guardianship. See Va. Code. § 64.2-1701(B). This makes sense. After all, a person unwillingly charged with caring for a minor is unlikely to do as good a job as someone who assumes the responsibility willingly.
A person appointed as a guardian by will must appear in the court in which the will was probated within six months after the probate to accept the guardianship. See Va. Code § 64.2-1701(B). The guardian is required to take an oath promising to “faithfully perform the duties of his office to the best of his judgment” and must post a bond equal to the value of the minor’s estate. See Va. Code. § 64.2-1704(A). The bond requirement may be waived in the will or in situations where the minor’s estate is small. See Va. Code § 64.2-1704(B).
What Happens If No Guardian Is Named
Also keep in mind that if your will does not name a guardian for your minor children, Virginia law provides the court with authority to appoint a guardian. Minors who are at least 14 years old are allowed to nominate a guardian. See Va. Code § 64.2-1703(A). And the minor’s next of kin are given 30 days to petition the court to be appointed as guardian before anyone not related to the minor may be appointed. See Va. Code § 64.2-1703(B). Having these arrangements set forth clearly in your will can avoid this uncertainty.
Making the Right Choice for Your Family
With these duties and powers in mind, as well as the steps to be taken once the guardian is called upon to serve, you as a parent are in a better position to choose a guardian for their minor children. Consider who in your life can be counted on to take on the role described above. Perhaps you have someone in mind who you know would care for your children but may not be up to the task of managing the more technical details of managing the children’s estate. If that is the case, keep in mind that you are free to specify that an accountant, lawyer, or other professional advisor must serve in conjunction with the guardian. In addition, consider naming a backup guardian if the first person named becomes unable to fulfill the role.
Whatever you decide, it is essential to inform the person you have chosen as your children’s guardian. Make sure that they understand and are comfortable with the duties and powers that this role would entail. An estate planning attorney can help walk you through this process. The peace of mind that comes from working carefully through this decision is well worth the effort.
If you haven’t named a guardian in your will, now is the time. A few thoughtful steps today can spare your children uncertainty tomorrow. Let’s make sure your wishes are clear and legally sound.