25+ Years Of Legal Experience

Living wills and child custody

On Behalf of | Jan 13, 2022 | Wills |

Dealing with the question of child custody in Maryland when both parents or the last remaining parent passes away is not simple. On the one hand, parents have the ability to use legal documentation to try to name a new guardian, but on the other hand, the court also plays a role and tries to act in the child’s best interest.

Wills and living wills

The three documents that help a person take control of what happens to them are the power of attorney, which gives someone legal authority to act on their behalf, a living will, which affects what happens while they are alive but incapacitated, and a will and testament, which provides instructions for what to do after they pass away. Usually, a living will contain medical and legal instructions to deal with an incapacitated person, a will distributes assets, and a power of attorney designates someone to make decisions. A power of attorney can name a guardian for children as can a will, but a living will can’t.

If there is a surviving parent, he or she will become the guardian of the children unless there is a legal barrier, such as a specific court order. If there is no other parent, the Maryland court system decides what happens and who becomes the guardian. They can consider the person specified by the deceased, but they are not required to choose a person named in the will.

There is no surefire way to make one person become the guardian of children when they have no living parents. However, these documents allow the parents to make a recommendation to the court.