“If something happens to you, what happens to your children?”
It’s a question no parent wants to think about, but it’s an important one to answer for parents who have minor children. Minor children are not granted full legal capacity until the they reach the age of majority, currently 18 years of age in Minnesota. This means that until the age of 18, children do not have the right to vote, own property, consent to medical treatment, sue or be sued, or enter into certain types of contracts.
A minor child’s mother, father, and in a divorce, either or both parents, are a child’s “natural guardian.” A natural guardian is empowered to make a wide range of decisions for a minor child, including medical and financial decisions that legally require a parent or guardian’s consent.
So what happens when one or both of a child’s natural guardians are deemed incompetent or die?
Minnesota law automatically presumes that minor children will be placed with their surviving parent. But in the event that both of a minor child’s parents are deceased or have been deemed incompetent, someone else must step in to care for the minor child and manage the minor child’s assets until the child reaches the age of majority.
Minnesota differentiates between a guardian and a conservator for minor children. A “guardian,” sometimes called a “guardian of the person,” is an individual with authority over and fiduciary responsibilities for the physical person of the minor child. A “conservator,” sometimes called a “guardian of the property,” is an individual who has authority over and fiduciary responsibility for a minor child’s assets. A guardian and conservator may be the same person, but are not required to be.
The most common way for parents to nominate guardians and conservators for their children is through a nomination of guardian and conservator in their wills. Most parents choose close family members or trusted friends as guardians and conservators, and often make alternate nominations, just in case the primary guardian and conservator is unable or unwilling to serve. It’s important to note, however, that the nomination of a guardian and conservator by one parent does not supersede the parental rights of either parent. If both parents are deceased or have been adjudicated as incapacitated, a nomination by the last person who dies or was adjudicated as incapacitated has priority.
In the event parents of minor children have failed to nominate guardians and conservators, the court has statutory authority to appoint a guardian and conservator for a minor child if the court finds the appointment in the minor’s best interest.
Most parents don’t like to think the idea of a court choosing who their children will live with and where they will live, but the decision of who to nominate is not an easy one.
There are several factors to consider when making this decision:
Age and Health. Many individuals choose their parents as default guardians and conservators for their children, but it’s important to consider the age of your children and the age and health of the child’s grandparents at the time you are making your will. If you have small children and aging parents, sometimes it may be more appropriate to choose a sibling or close friends who are younger, healthier, and may even have children around the same age. You should also consider emotional and financial health and wellbeing when making this decision.
Family Status. What do you want your child’s daily life to look like? You probably want your child to live comfortably in a family environment. You may want them to live in a household with two parents and children close to your child’s age. You may even want to name a married couple as guardians and conservators for your children. But also consider the possibility of divorce and who should be the guardian in that event, no matter how unlikely it may seem.
Values. List out your values for raising your children. What moral, religious, and spiritual values are important to you? What do you want for your child? Is education a top priority, or is ensuring that your child can follow his or her passion more important? Choosing a guardian with similar values, discipline style, and overall lifestyle are another consideration to take into account.
Ask Permission. Once you’ve narrowed down your list of potential guardians and conservators, ask their permission. Asking someone to step in as your child’s guardian and conservator in the event something happens to you is no small task. Make sure the people you are nominating are comfortable with the decision, talk about how this addition might affect their own family, and discuss your values and what you hope you child’s future will look like.
Choosing who to name as guardian and conservator for your minor children can be a difficult decision, but naming someone you trust to love and care for your children if something happens to you offers certain peace of mind. Remember, your decision today does not have to remain the same; you can change your guardian and conservator designations at any time, and may want to do so as your children get older and circumstances change.
Interested in learning more?
Contact one of our attorneys directly or check our attorneys' availability and schedule an appointment online anytime. You can also call the office at (507) 288-5567.