When you are young and healthy, estate planning feels like one of those adult responsibilities that can wait. But this pandemic has made it clear that we cannot take our health for granted. Things can change in an instant. Being a parent only compounds these concerns because ‘being there for our kids’ is what we do. Thinking about the alternative is almost unthinkable and choosing our replacement, known legally as a “guardian”, is possibly the most difficult choice we might make.
Even if we are lucky enough to enjoy good health and be free from the effects of the pandemic, life happens, and waiting until tragedy strikes places our children in a precarious position. It is important to confront these decisions when we can think about them clearly. Naming guardians gives our children the gift of stability after a life-altering event.
If something happens to you, and you fail to choose a guardian for your minor child, an already devastating event could become an even more tumultuous one for your child. A court will intervene and determine what would be in your child’s best interests. Your child could find themselves living in a foster home permanently or at least until the court names a guardian. Usually, young children do not get a say about who will care for them. This means that several individuals could petition the court requesting guardianship which can result in a protracted, expensive and possibly contentious court battle.
Each state puts forth their own legal requirements for naming a guardian. Generally, a guardian must be at least 18 years old, of sound mind and not incarcerated. But parents often have more specific criteria for choosing who will take care of their children. A few things to consider might be:
Physical Ability – Grandparents might seem like an ideal choice especially you’re your own parents are in good health and physically active. But what happens when your children become more active and grandparents start to slow down. If you have a child with special needs, that child might require care for a longer term.
Emotional Stability – Aunts and uncles might be a wonderful option. A younger sibling might have the energy and potential longevity. However, if they have thus far only been accountable to themselves, finding themselves suddenly responsible for the care and welfare of one or more young children might be an overwhelming and abrupt life adjustment.
Shared Values – If parents have specific wishes about how a child should be raised, or would like adherence to specific religious practices, it is important to convey these things to anyone named as a guardian.
Location, location, location – If the people you have found to care for your brood live in another state, it is important to spell out whether you expect named guardians to move to live with your children or vice versa.
Playing to Strengths – We might have chosen the perfect person to care for children. They are loving, nurturing and dependable. Yet, despite those great qualities, they have no clue how to manage money. What happens if our children inherit assets or have accounts that need managing? In most states, including California, we can name different people to serve in different capacities. We can name a ‘guardian of the person’ who will have physical custody and provide the day-to-day care for our children. We can also name a ‘guardian of the estate’ who will manage and protect the child’s finances.
Backup – Sometimes our best laid plans do not always come to fruition. Our first choices may not be in a position to take care of our children when the time comes, either personally, financially or physically. It is important to consider naming additional people.
We can help walk you through these and other important considerations and prepare documents reflecting your particular family’s needs.
