Who Will Care For Your Child(ren)?
Naming Long-Term Guardians in Your Estate Plan is one of the most
important things you can do for your children
Written by: Neil O. Anderson, Esq.
We do not enjoy thinking about death or incapacity, but this one-liner says it. Treat each day as your last; you will be right one day. I imagine myself bouncing a grandchild on my lap someday. I have every intention of living to a ripe old age. Many of us do. We should. But, what if we don’t? Death is the one instance where we never know when we will be correct. What if we pass before our child(ren) reach the age of majority or can care for themselves? Who will take care of them? If you are like me, you want to control that decision.
Did you know you can name a long-term guardian (person to care for, love, nurture, and raise your children) within your estate plan?
Guardianship is impossible to ignore. A parent can make no more extraordinary decision than determining who should be the guardian of their minor children. In fact, as a Dad, this is the most fundamental part of my family’s estate plan. An estate plan silent on guardianship (or no estate plan) risks giving the Court no choice but to name guardians for “you.” A Judge will do their best to do what is suitable for your child(ren), but they do not know you, your children, or the nature of your relationships with others. A judge may place your child(ren) with someone you never consider. Worse yet, put in the foster care system. Knowing you will someday be correct, but not knowing when that will be, I encourage every parent to do their estate planning without delay.
What Should I Consider When I Choose a Guardian for My Children?
What is suitable for your children? Who is right for your children?
You can name virtually anyone to be the guardian of your children, whether a friend or a relative. But anyone is not good enough. Things you may consider when making this vital choice include:
- Parenting Skills: Let’s face it, not just anyone can parent. It would be best to consider someone with the skills to care for, provide, guide, and nurture your child(ren). It may not be enough to choose a person who will love your child.
- Values/Morals/Religious Beliefs: Most of us raise our children with values, morals, or religious beliefs important to their upbringing and well-being. It is not a one-size-fits-all. We also have family, friends, and loved ones who do not necessarily share our values, morals, or beliefs. It is undoubtedly an important consideration when choosing who will care for our children in our absence.
- Physical Ability: For many, our parents, an aunt or uncle, or a much older sibling are natural choices to serve as long-term guardians for our child(ren). They may be a perfect choice. However, their age and physical ability, as well as the age of your child(ren) and particular needs of your child(ren), require some consideration when making this choice, because raising a child(ren) can be physically demanding.
- Financial Stability: This may or may not be a consideration. In a well-thought-out estate plan, where there are enough assets to financially care for your child(ren) throughout their youth or lifetime, the financial situation of your chosen guardian(s) may not be an issue. However, for parents who do not have enough financial assets to provide for their child(ren) long-term, the financial stability of the household you wish your child(ren) raised in could be an essential factor.
- Financial Responsibility: This may or may not be a consideration. It is possible to name a guardian for your child(ren) who will not assume financial responsibility. Instead, a separate guardian, often called a trustee, will manage the financial end of things for your child(ren). If you choose to divide the roles between guardian(s) and a financial steward, it is essential to consider how well the guardian and trustee can work together for your child’s well-being.
- Location: Do you prefer your children to stay in the same school or community? If not, does the person you have chosen live in a community with a good school district? Is your chosen guardian outside the United States? How would your child(ren) handle being uprooted?
- Backup: You also want to consider naming backup guardians. By choosing a backup guardian(s), you can have peace of mind and confidence that your children will only be cared for by someone you truly trust. You will have greater peace of mind. More importantly, your children will be protected if your named guardian cannot serve due to illness, personal situation, unwillingness, or other reasons.
I Have Chosen My Guardians, Now What?
Once you have selected your guardians and before you complete your estate plan, ask permission of those you have chosen. You want to make sure this is a role your chosen guardian(s) are willing and able to take on. If you miss this vital step, the person you have selected might not prepare. They also may not accept. Have some discussion with the person(s) about what it means to raise your child and why they are your choice. Write down some instructions or a guide to what is essential to you should someone else ever be in the position of raising your children. What financial choices should be prioritized, private school, certain extracurricular activities, travel, etc. Do the same for the trustee if they are different from the guardian.
You can change your mind—life changes. Your plans may need to as well. Your child(ren) ‘s needs as they transition through the stages of childhood, a divorce, or a significant geographical move may all be a reason to revisit your estate plan and consider changing your guardianship nomination.
Will the Court Abide By My Choice
Courts are generally inclined to abide by the deceased’s directives. In unique situations, there can be some exceptions. Perhaps interested parties have solid objections, or, in some cases, it is impossible to assign guardianship according to your directions. Naming backups is a good safeguard to avoid this possible outcome. That said, unless there are severe difficulties with your choice, the Court is likely to abide by your wishes.
What do I Need to Do to Include Guardianship In My Estate Plan?
Typically, you will state your wishes for long-term guardians and child(ren) ‘s trustees in your Will. Because naming a guardian is at its core one of the most critical planning decisions you can make to protect your child(ren), I strongly recommend you work with an attorney.
Discuss planning guardianship arrangements with your attorney. Whether you are preparing your first plan or revisiting an existing plan, a professional will help you get this right.
At Envision Estate Planning, we will help you incorporate guardianship plans into your estate plan and provide you with resources, advice, and information to help you make the best choices for your circumstances. We offer a 15-minute phone, Zoom, What’s App, or Google Meet consultation or 30 minutes in-person consultation to anyone interested in learning more about this or other estate planning topics.
You can reach us by calling (781) 874-4674 or by connecting with us on our website at www.envision.law.