During the past several months, I have had two cases where the parents of a child have died. In both cases, the deaths were sudden and unexpected. Fortunately for the children, relatives were available to step up and take on the responsibility of raising the children. In one case, the paternal uncle and aunt took custody, and in the other case, the maternal grandmother was available and took up the reigns. Let’s took a look at the legalities of these situations and the steps that must be taken when this type of tragedy occurs.
In Tennessee, the law allows for the appointment of one or more persons to step into the shoes of the parents and raise the children. The Latin phrase for this is in loco parentis, meaning in the place of a parent. It refers to the situation where a person or persons other than the parents, take on some or all of the responsibilities of the parents. This occurs by filing a document with the court, called a petition, requesting the court to appoint a guardian for the children.
The court will hold a hearing to determine whether the petitioners are proper persons to have the care and custody of the children. Usually, the relatives are in agreement on who should take on the role of guardian and there is little or no resistance to the appointment. Occasionally, a disagreement will arise, usually between the maternal and paternal grandparents, over who should be appointed guardian. In those cases, the court will appoint an attorney to act as an investigator to look into the facts and circumstances of the case, investigate the competing parties and make recommendations to the court. The appointed attorney is referred to as a guardian ad litem, meaning guardian for the litigation, and only serves until the court makes a final ruling and discharges the attorney from further responsibility.
At the hearing, the court will listen to the testimony, consider the report of the appointed guardian ad litem, and make a decision based upon the best interest of the children. The court will then appoint one or more persons to act as the permanent guardian of the children.
There are two types of guardians that can be appointed. The first is referred to as a guardian over the person. This type of guardian will be responsible for the day-to-day decision making and rearing of the children. Things such as where the children will live, in what extra-curricular activities the children will participate, where the children will go to school and church, and just about any other decision pertaining to child rearing will be the responsibility of the guardian over the person.
The second type of guardian is referred to as a guardian over the estate of the person, and is responsible for managing the money and other assets of the children. Often when parents die, the children are entitled to social security benefits paid on a monthly basis. Additionally, parents often have life insurance and other assets that are left to the children. Someone has to be appointed by the court to oversee the investment or management of these assets. Often the person appointed guardian over the person and the person appointed guardian over the estate are the same. The guardian over the assets and estate of the children is not always a relative or natural person. Occasionally, the court will appoint a bank or other financial institution to oversee the assets of the children when those assets are substantial.
The person appointed guardian over the estate of the children will usually be required to file reports with the court on an annual basis describing the status of the investments and the income and expenditures made for the benefit of the children. These reports are called accountings and can be excused by the court when the income and assets are minimal and the costs of making the reports would outweigh the benefit to the children.
It has been my observation that when faced with such a tragedy as the loss of the parents of a child, families will come together and rally around the children to provide support. There is usually a period of grief and reflection before the reality and gravity of the situation is considered. In situations where families are close and do come together for support, my advice is to allow enough time to pass, usually a week or two, before taking any legal action. Take time to come together as a family and attempt to agree on the division and allocation of responsibilities. Appoint one of the family members to find a good attorney if one is not already available. That person will usually be a non-blood relative and will take on the responsibility of gathering information and coordinating the meeting with the attorney.
In those unfortunate situations where families are at odds and cannot agree, there may be a need for more immediate action. In those situations, it may be necessary to employ an attorney as soon as possible to begin the process so as to preserve the estate of the children and insure the children are properly cared for. In either situation, the best interests of the children should be paramount.
No matter which situation you find yourself in, it is necessary to hire an attorney to represent your interest and those of the minor children. The attorney fees are usually reimbursed out of the funds belonging to the children and are usually awarded by the court. Although probate attorneys are accustomed to handling guardianship cases, it is important to hire an attorney experienced in child custody matters. This is especially true if the case is contested.
For additional information about Tennessee guardianship cases, call the Memphis attorneys at Memphis Family Law Group.