You love your children more than anything in the world and would do anything to protect them. But what if something happens to you or you and your spouse – who will love, care, and raise them?
Do not assume. Unless you have properly and legally nominated guardians in the event of your death or incapacity, all bets are off. Those that you would want to care for your children might not be able, willing, or chosen by the court. And the scary reality is that, if not properly planned, your kids could end up in child protective services or foster care until a judge decides who and what is best.
Before you lose any more sleep about it, one thing you can do to prevent such a nightmare and to achieve peace of mind is to be proactive in appointing temporary and permanent guardians for your kids. While it is certainly not an easy topic to think or talk about, creating a comprehensive guardianship plan will ensure that your kids will be cared for by the people you want and in the manner you want.
Once you create your plan it is important to review it regularly. Life changes quickly as does your child and your family dynamics and friendships. Have you grown out of contact with your once-best friend or did a trusted neighbor move away? Maybe a family member has passed away or no longer has the ability to care for young children. Whatever, the reason, thoughtful discernment in creating and reviewing your guardianship choices every year is recommended, but it is also important to review these choices whenever there is a big life event.
Here’s a an easy to use guide of considerations to help you kickstart the conversation:
What are your values?
Think about what is important to you in life, and consider how you would like these values to influence your children’s lives. Now think about the adults closest to you. Of these individuals, who represents your most cherished values and would be successful in sharing these with your kids?
Who would be best suited to be a parent?
Does your appointed guardian have the time, energy, and capacity—mental, physical, and emotional—to raise your children? For example, if you’re thinking about appointing your parents as guardian of your little ones, consider whether they’ll be able to keep up with them. Think about who your children get along with well, but also who would be able to provide them with appropriate guidance and discipline. Be honest with yourselves and be open to the fact that sometimes family might not be the best option.
Does having financial means to raise your kids matter?
Financial resources should not be central to deciding who should raise your children. Through proper planning, you can ensure the financial security of your children irrespective of who you name as guardian. For example, the proceeds from a life insurance policy can be held in trust for your children. Your successor trustee can then work together with guardian(s) (they do not have to be the same person) use the assets in the trust you left your kids to pay for the costs incurred in raising them. In this manner, you can ensure you are selecting the best person to raise your children, as opposed the person who can afford it best. For more information about the power of life insurance, click here.
Where does the potential guardian live?
It may be important that your kids maintain stability in their everyday lives such as with school, friends, and neighborhood. In order to accomplish this, consider the location of the potential guardian. Proximity in case of an emergency is also an important consideration. A permanent guardian who lives far away might be unable to arrive in time to care for your kids, thus creating a situation where your kids are taken by child protective services in the interim. For that reason, it is important to name both temporary and permanent guardians for your kids. A temporary guardian should live close by so that your kids can be cared for quickly and in the interim until the permanent guardians can arrive.
Would your nominee accept the position?
While your nominee is likely someone who loves your children very much, it is an important responsibility to actually serve as guardian of someone else’s children. Ultimately, you choice can decline. Thus, it is important that you have a conversation about these choices with any potential guardians beforehand to be certain they understand their role and accept it.
Do you want a couple to be co-guardians?
There are many familial and friend relationships that come in pairs: your parents or in-laws, your sibling and their spouse, close married friends, etc. For these couples that you believe would take great care of your kids, the question becomes do you select both of them or just one? Sometimes you have a closer and longer lasting relationship with one partner. When it comes to raising your kids, guardians do not have to come as a package deal. You are allowed to, and it may be highly advisable to, select only one person. For example, you have known your sibling your entire life but their spouse, whom you like well enough, you might not truly know all that well. Would you be comfortable with your sibling’s spouse raising your kids by themselves should something happen to you sibling or they get a divorce? While there is a lot to consider, the good news is that you can create a plan highly customized to your family situation and the needs of your kids.
Do you have a backup plan?
It is crucial to name more than one potential guardian. What if something happens to your first choice? It is always good to have extra security measures in place, particularly when it comes to protecting your children. Additionally, if you name a couple to act as a guardian, make sure to decide what should happen if the couple breaks up or if one dies or is incapacitated.
Have you spoken to an estate planning attorney?
Thinking about who to name as a guardian for your children is a process enough. Sometimes it is helpful to get the hands-on guidance from a trusted counselor at law. In addition, an estate planning attorney can best describe how the various scenarios you are considering might play legally. Moreover, your guardians should not be chosen without considering your entire estate plan; they are not mutually exclusive components but are rather quite integrated. For example, will the guardians also be the executors of your estate or the trustees of your trust? Is a good idea or not? If not, what type of access will they or your children have to financial resources to raise your children? These questions and their answers should be discussed with an estate planning attorney as they understand and can explain the ramifications some of you choices might have on your estate assets and you family.
Want to learn more?
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Kevin Snyder is a husband, father, and an Orange County estate planning attorney and elder law attorney at Snyder Law, PC in Irvine, California. He is all about family and has a passion for educating his community about estate planning and how to protect what matters most.