Watching Out For Your Kids
(Nominating Guardians For Minor Children in Colorado)
If you have minor children, the most important decision you make when you plan your estate is who will care for your children if you die or become incapacitated. Your children are the most important things in your life, and you want to ensure they are cared for and protected properly after your death. Deciding who will be the guardian of your minor children is a vital decision that should not be taken lightly.
Colorado defines a “minor” as “an unemancipated individual who has not attained eighteen years of age.” The document used to nominate a guardian for your minor children is generally referred to as an Appointment of Guardian. However, that title is deceptive because you cannot “appoint” someone to be the guardian of your children – only the court can do that. The document is more of a nomination of guardian whereby you select a person for the court to approve as the guardian of your children. All guardianships in Colorado must be approved by the probate court.
The person named in your appointment of guardian only becomes eligible to act on behalf of the minor child after he or she has filed an acceptance of appointment with the probate court. This document must be filed within thirty days of the appointment becoming effective. The proposed guardian must also give written notice of the appointment (and the right to object) to the appointing individual (if still alive), the minor child if he or she is over twelve years old, and whoever may have care and custody of the child at the time of appointment. If there are no objections, the person is confirmed by the probate court as the minor’s guardian.
Your guardian will have significant authority over your child’s life. For example, the guardian has the right to determine where the child will live and where he or she will attend school. The guardian will also have the right to make medical decisions on behalf of the child and to sign legal documents on behalf of the child. Because of the broad powers conferred on a guardian, Colorado law places a high standard of care on such a person. A guardian is deemed to be a fiduciary under Colorado law, which means that he or she must always act prudently and must always act in the best interests of the child. The court requires reports from the guardian to ensure compliance with his or her legal duties to the minor child.
Because of the breadth of their duties and powers, it is vital to make well-informed choices about who you will name as your child’s guardian. Does he or she live here in the neighborhood, so the child will not get uprooted and taken to a different state? Does he or she generally make sound, well-reasoned decisions? Is he or she too busy to handle all the obligations? All these questions should be answered before a guardian is named. Spend the time to make the correct decision, and then communicate that decision directly to the proposed guardian. It is also helpful to create a letter or memorandum for the guardian describing your values, beliefs and priorities for your child. This is a valuable roadmap for a guardian to follow once you are gone. If you have any questions about your current estate plan, or would like to discuss developing an estate plan, please call me at 303-716-9666 or email me at Harvey@hjwlaw.com.