My son, along with thousands of other Seattle kids, attended a full day of school in person for the first time since March 2019 last week. Both kids and parents kicked off the 2021-22 school year with a mix of excitement, anticipation, and apprehension amplified by the ongoing COVID-19 pandemic. In the first week of school, our family – like many others – had to adapt to last-minute changes on the fly. Sending kids off to school this year means having a plan and a backup plan – and a backup to that backup plan.

The start of the school year is the perfect time for parents to evaluate whether it is time to update – or create – their estate plan nominating a guardian to take legal responsibility for any children who are under the age of 18. Parents can nominate agents to make health care decisions on behalf of minor children in a General Durable Power of Attorney, pursuant to RCW 11.25.410. The nomination is effective when there is no parent or other legal representative available to make such decisions on the child’s behalf. The General Durable Power of Attorney can also include a nomination of a guardian to be appointed for the child during the incapacity of the parent. In addition, parents can nominate who they want to be appointed as the legal guardian upon the parent’s death in a Will.

While a guardian for a child may be nominated by a parent in a General Durable Power of Attorney or in a Will, the guardian does not have legal authority to act on behalf of that child until a judge signs an order appointing the guardian. If a parent nominates someone to serve as a legal guardian for a child in their estate planning documents, Washington law directs the court to appoint that guardian – unless there is evidence presented to the court that the appointment is contrary to the interest of that child. RCW 11.130.215(2) provides as follows:

(2) In appointing a guardian under subsection (1) of this section, the following rules apply:

(a) The court shall appoint a person nominated as guardian by a parent of the minor in a will or other record unless the court finds the appointment is contrary to the best interest of the minor.

(b) If multiple parents have nominated different persons to serve as guardian, the court shall appoint the nominee whose appointment is in the best interest of the minor, unless the court finds that appointment of none of the nominees is in the best interest of the minor.

(c) If a guardian is not appointed under (a) or (b) of this subsection, the court shall appoint the person nominated by the minor if the minor is twelve years of age or older unless the court finds that appointment is contrary to the best interest of the minor. In that case, the court shall appoint as guardian a person whose appointment is in the best interest of the minor.

What should parents do? As with planning for the start of the school year, it is important to have a plan for who will care for their kids, if tragedy strikes, and a backup plan – and a backup to that backup plan. Have a question about nominating guardians for your children? We’re happy to chat!

This post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.

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