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Often the most difficult part of planning an estate for the parents of a young child is the selection of a guardian for the child if neither parent survives.

The first thing you should know is that while the designation of a guardian by the second to die of the parents is accorded great weight and normally prevails, the court is not bound by this selection but must consider the best interests of the child. Knowing that criterion, you will be better able to decide to whom you give this measure of trust. There are several factors to consider when choosing a guardian, including age, experience, temperament, values, religious beliefs, relationship with the children, and whether the guardian has his or her own children. Clients must decide whether it is preferable to name family members or friends. We always counsel clients to consult with their candidates for guardian before making a final selection.

The child with special needs, even having achieved his or her majority, is still a child that requires assistance when you have left the scene. Where applicable, we institute proceedings seeking appointments of guardians for minors or for persons with disabilities and/or assist such guardians with their annual and final accounts.

Questions you should be asking:

The attorneys at Cullen and Dykman can answer these questions and more.

 A case in point:

Numerous cases arise in which the guardian wishes to use the child’s funds for the benefit of others in the household such as new housing, vacations and trips. Court approval is required. In addition there are annual accounting requirements and court filings. For that reason we normally advise that the role of the guardian be limited to the personal needs of the minor child while the child’s inheritance is kept in trust. Consideration should also be given to compensating the guardian monetarily for this responsibility.


  • Seminar on Banking Issues in Article 17/17A Guardianships, Office of Court Administration's Judicial Institute
    May 2011