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By Liza Horvath


Who Gets the Baby?


Raising the question of guardianship over Thanksgiving dinner seemed like a good idea at the time – then I caught a glimpse of the grimace on my husband’s face. Oops. Is the question of who would act as guardian if something happened to my 30 year old nephew and his wife or guardian of our grandchild, Emma, one of those things “taboo” topics - like politics and religion?


Well, once it was out of my mouth I could not just “unsay” it – so there it hung, in the air above the table, amid the silence. My husband asked for more sweet potato soufflé but no one moved. Twilight Zone – time seemed to stand still. Finally, my nephew, Eddie, said, “Well, I think that would be the godparents, right?” Ha! Victory was mine – not only had they thought about it, but they had made assumptions –albeit wrong assumptions – but they had considered it all the same and so a discussion ensued.


There are two legal documents that young parents must have regardless of what their assets consist of. An Advance Health Care Directive - the “pull the plug” document - is absolutely needed by everyone and a copy of the document should be given to the named agent, your doctor and to the local hospital. The second document all young parents must have is a Will. A Last Will and Testament is vital for young parents because this document names the guardian of minor children should something happen to the parents.


My nephew and his wife may have lovely godparents who they have identified as a suitable family for their children should something happen to them but, unless that wonderful couple is identified in a Will as the named guardians, chances are that little Tyler and Mila will end up with someone else and that someone else may not necessarily be the best choice – at least in the eyes of my nephew and his wife.


When a minor loses their parents, there is never a “pat” answer for “Who gets the baby?”  Someone will need to file a petition with the court for legal guardianship. To have standing to seek guardianship – standing means the right to ask the court to hear your case – you must be named in a will as guardian or be a relative of the child. Grandparents, aunts and uncles of the minor child all have standing to seek guardianship.


Absent a Will naming guardians, there would surely be a war between the grandparents on both sides of my nephew’s family for custody of Tyler and Mila and the funds spent on legal fees would not be the biggest tragedy. The “not knowing” would. Both grandparents would feel obligated to seek custody because they both would truly believe they are the better family for the children. Both grandparents would also most likely think that their child would have wanted them to be the guardians.


Not signing a will naming guardians is simply negligence, young parents. I cannot emphasize this strongly enough. It is easy, not expensive and is your duty as a new parent.

Liza Horvath has over 30 years experience in the estate planning and trust fields and is the president of Monterey Trust Management, a financial and trust management company. This is not intended to be legal or tax advice. If you have a questions call (831)646-5262 or email liza@montereytrust.com










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