A Nomination of Guardian by a parent in a last will or standalone document is not guaranteed. The Court ultimately has final say in who assumes the role of Guardian. While the parent’s nomination will be weighed highly by the judge, several paths to blocking the parent’s chosen nominee exist. This article reviews the paths available under the Uniform Probate Code, which may differ from the laws in your state.
Who Can Block A Guardian Appointment
Section 5-203 of the Uniform Probate Code states that until the court has confirmed as appointee to serve as Guardian, certain people may prevent or terminate the appointment:
- A minor subject to the appointment who is at least 14 years of age
- The other parent
- A person other than a parent or a guardian having care or custody of the minor
How to Block A Guardian Appointment
To block a guardian appointment, a member from one or more of the groups above must file a written objection in the court in which the appointing instrument (i.e., the will or standalone guardian nomination document) is filed. The objecting group must also deliver the written objection to the guardian in the appointment and any other persons entitled to the notice of acceptance of appointment.
Such objection can be made any time prior to the court’s confirmation of the original appointment.
What Happens if a Guardian Appointment is Blocked
If a Guardian appointment is blocked, the court may appoint a temporary guardian to serve for no more than six months while the court further evaluates who will serve as the regular guardian (UPC Sect. 5-204).
As part of this evaluation, the court will schedule a hearing in which all the different individuals and groups who have an interest in the child's welfare may attend to argue before the court for the appointment that would be in the best interests of the minor child. These individuals and groups may include:
- the person appointed to be Guardian in the instrument
- the minor child (if 14 years of age or older)
- the parent or parents of the minor child (if still living), or the adult nearest in kindship that can be found
- the group or groups contesting the appointment
- other people who have a demonstrated interest or concern in the welfare of the minor child (i.e., relatives and non-relatives having knowledge of the circumstances as well as public officials from relevant agencies)
After listening to the arguments of these individuals and groups, the judge will make a final determination of who is to serve as the regular guardian.
