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George H. Gray

What is a Guardian?

The dictionary defines a “Guardian” as a person who is entrusted by law with the care of the person or property, or both, of a minor.

The dictionary defines a “Guardian” as a person who is entrusted by law with the care of the person or property, or both, of a minor. The Guardian is the person who will raise your child in the event both you and your spouse have passed away. During the process of selecting an individual to be nominated as Guardian of your minor child under your Will, you should give consideration to the relationship of the Guardian to your child, the Guardian’s physical location, the values you share with the Guardian and the Guardian’s own home situation. For example, while a candidate in another state may be an excellent choice, what impact will a move so soon after the death of his parent have on the social development of your child?

One of the most important functions served by the Will of parents is the nomination of an individual or couple to serve as Guardian(s) of their minor children. To be effective in that task, the Will must be duly admitted to probate and recorded in the proper court and “Letters of Guardianship” must be issued as a result. The person nominated as Guardian in the Will must, within three months after the Will is admitted to Probate, file a petition (with the appropriate oath and designation) showing the facts which entitle him or her to qualify and receive “Letters of Guardianship.” The standard the Surrogate’s Court uses to appoint a permanent Guardian is a finding that the appointment is in the “best interest” of the minor child. Guardianship ceases when the child attains age 18.

Generally, the person nominated in the Will is appointed the Guardian of the person and property of the minor child. A Guardian of the property of a minor child must protect, preserve and manage the property of the infant. New York law places limitations upon the Guardian’s authority to manage the property of a minor child, including the obligation to submit an annual account. It is for this reason that a well executed Estate Plan places the property inherited by a minor child in a trust managed by a Trustee, not the Guardian, with many fewer constraints on his or her authority.

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