When people with children younger than 18 are creating estate plans or drafting their wills, factoring in who will care for their children is a vital issue. No situation where a loved one passes away with minor children is ideal, but things can go more smoothly and painlessly when there’s no dispute regarding guardianship over the children.
Note: “Guardianship,” in this case, refers to a legal arrangement where an adult assumes responsibility for a minor who is unable to provide care for themselves. In many ways, the guardian in a probate scenario is expected to act as a stand-in for the deceased parent.
Unfortunately, conflict can arise during probate when the court seeks to confirm guardianship – and in certain cases, there may be good reasons to generate this conflict. While family members should strive to avoid petty disputes or disagreements from interfering with the deceased’s wishes, those with serious concerns for a child’s welfare should speak up.
Challenging someone’s guardianship can be one of the hardest things you do – especially when the person you’re up against is a relative – but it can also be one of the bravest things you do in the best interests of someone else’s children.
Guardians Must Be Eligible for Appointment
For those with concerns about family members convicted of felonies, sex crimes, or other crimes involving children, there are fortunately guardrails embedded in the system that prevent this type of person from ever assuming guardianship (and even losing custody and visitation rights over their own children).
That a guardian is free of such criminal convictions is only one eligibility factor the court will weigh when determining who is fit to assume guardianship.
Other eligibility requirements include that the presumed guardian:
- Is at least 18 years old
- Is in good mental and physical health
- Has the time necessary to provide childcare
- Has the resources necessary to provide childcare
- Has a good moral character and fiscal responsibility
Aside from lacking a criminal record and the age requirement, you’ll notice that most of these eligibility factors the court will weigh are ultimately matters of opinion. While discrete values can be assigned to how much money or available time is necessary for the guardian to provide adequate childcare, such values will differ on a case-by-case basis.
The point here is that despite the existence of guardianship eligibility requirements, someone who ticks all of the boxes may not be the best person for the job – especially if you have doubts about matters such as their moral character or mental health that a judge cannot see.
What You Should Do If You Disagree with Guardianship
If you believe a deceased relative has selected an unfit guardian for their children, it’s important to get the assistance of an attorney as soon as possible. The burden of proof will rest on you to demonstrate to a judge the presumed guardian is deficient in some way such that the deceased’s children may be harmed or neglected in their care.
This is not only a technically hard case to prove, but it can be an emotional one that can strain relations within your family. At The Bundren Law Firm, P.C., we know that challenging guardianship is no small matter. Should you need legal representation to help you sue for the best interests of the deceased’s children, reach out to us for advice and services that can make a difference.
Contact The Bundren Law Firm, P.C. online or by calling (918) 992-3300 for help today!