There are several issues regarding minor children and dependents that need to be addressed when drafting your estate planning documents. New Mexico law places restrictions on the ability of minor children to receive property by inheritance. In addition to appointing a personal representative to administer your estate, it is important that you identify who will help raise your children and look after their personal well being after your gone. (This person is called the guardian.) It is also important that you indentify who will be responsible for supervising the property you leave to your children. (This person is called the Trustee / Conservator).
The Personal Representative, Guardian, and Conservator can all be the same person or different people. The traditional distinction between guardians and conservators is as follows:
- Guardians – A guardianship is a legal right given to a person to be responsible for the food, health care, housing, and other necessities of a person deemed fully or partially incapable of providing these necessities for himself or herself.
- Conservators – A conservatorship is a legal right given to a person to be responsible for the assets and finances of a person deemed fully or partially incapable of providing these necessities for himself or herself.
Personal Guardians For Minor Children
Estate planning documents should name a “personal guardian” to care for minor children if both parents are deceased or if the surviving parent is unable to care for the children. The personal guardian will have legal guardianship over the minor children until they reach the age of 18.
Leaving a written explanation may be important if you think that a judge could have reason to question your choice for personal guardian. Faced with conflicting wishes, a judge would have to make a choice based on the evidence of what’s in the best interests of your child. This is why we recommended that any estate planning documents also include a letter of explanation.
Judges are required to act in the child’s best interests, so in your letter explain why your choice is
best for your child. Here are some issues the judge will consider:
- the child’s preference, to the extent it can be ascertained
- who will provide the greatest stability and continuity of care
- who will best meet the child’s needs
- the relationships between the child and the adults being considered for guardian, and
- the moral fitness and conduct of the proposed guardians.
You should name one personal guardian (and one alternate, in case your first choice can’t serve) for each of your children. Legally, you may name more than one guardian, but it’s generally not a good idea because of the possibility that the coguardians will later disagree. On the other hand, if you prefer that two people care for your child — for example, a stable couple who would act as coparents — name both of them, so that they each have the legal power to make important decisions on behalf of your child.
Here are some factors to consider when choosing a personal guardian:
- Is the prospective guardian old enough? (You must choose an adult — 18 years old in most states.)
- Does the prospective guardian have a genuine concern for your children’s welfare?
- Is the prospective guardian physically able to handle the job?
- Does he or she have the time?
- Does he or she have kids of an age close to that of your children?
- Can you provide enough assets to raise the children? If not, can your prospective guardian afford to bring them up?
- Does the prospective guardian share your moral beliefs?
- Would your children have to move?
Conservatorship / Trustee
Managing your financial matters and care for your children should be addressed as two different issues.
You can name the same person as guardian and conservator/ trustee or different people. Some parents name one person to be the children’s personal guardian and a different person to look after financial matters. Often this is because the person who would be the best surrogate parent would not be the best person to handle the money.
Conservatorship refers to the legal right given to a person to be responsible for the assets and finances of a person deemed fully or partially incapable of providing these necessities for himself or herself.
Your documents would name a conservator/ trustee who will handle money or property the child inherits until the child reaches the age you specify. If the beneficiary is already over this age at your death, the trust never comes into being; instead, the property goes straight to the beneficiary. The trustee must act in the beneficiary’s best interests and follow your written instructions. Generally, the trustee can spend trust money for the young person’s
health, education, and living expenses. When the child reaches the age you specified, the trustee ends the trust and gives whatever is left of the trust property to the beneficiary.
We recommend parents establish a trust for each child in their will.
Legal Incapacity and Guardianship
Sometimes it may be necessary to petition a court to appoint a legal guardian for a person. When an individual is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs or other reasons, it may be necessary to appoint a guardian as a means of providing continuing care and supervision of the incapacitated individual.
Barnett Law Firm, PA will help you solve the difficult issues surrounding the incapacitation of a loved one. Our experience handling numerous guardianship proceedings throughout the New Mexico area enables us to resolve these matters quickly and cost-effectively.