Tuesday, September 11, 2012
Alyssa A. DiRusso (Professor, Samford University, Cumberland School of Law) and S. Kristen Peters (Associate Lawyer, Alabama) recently published their article entitled, Parental Testamentary Appointments of Guardians for Children, 25 Quinnipiac Prob. L.J. 4 (2012). The abstract from SSRN is provided below:
Who decides the right person to raise a child whose parents have died? Although many parents believe that the appointment of a guardian they make in a will for their child is binding, in fact courts in many states can choose to ignore parental wishes. Nearly half of U.S. states vest the power to appoint a guardian with the court, which can consider issues in addition to – and in some cases as a priority over – the parent’s testamentary appointment. States are divided into two categories: court-appointed states, where the court has the ultimate power to appoint a guardian, and parent-appointed states, where the parent’s appointment controls (subject to certain limitations). This article describes the status of state law within these categories of court-appointed and parent-appointed states, and explains why statutes ought to be reformed to insure that courts cannot ignore a parent’s testamentary appointment of a guardian.