No one likes to think about the end of their life, especially considering that something could happen to you at a younger age, even more so if you have children. Thinking about someone else raising your children may feel crushing or horrific, but it is something you need to consider.
No one can predict if their life will be cut short, so planning for the possibility of an earlier-than-expected death can help ensure your children are properly taken care of until adulthood.
Chances are, there is someone that you know that would do a decent job providing for your children’s general welfare, education, and medical needs should you no longer be available to do so. It is important that you speak with the person you want to take care of your children to make sure they would be willing to do so.
Parents with minor children need to name someone to raise them in the event that both parents should die before the child becomes an adult. This person is called a guardian.
While guardians are more commonly needed for minor children, a guardian is also needed for dependent, adult children who may have special needs and are unable to care for themselves.
For example, if you are currently serving as guardian for your child with down syndrome, you should also plan for another guardian to take over should you no longer be able to serve. Again, you should make sure to speak to the person or people you want to do this to ensure they would be willing and able to do so.
The best way to name a guardian is to nominate them in your Last Will and Testament. You can nominate a primary person and backup in case the primary person ends up unable to be a guardian for whatever reason. For example, if you named your parents but your parents pass away before you do or are unable to take care of your child due to their age, you could list someone else to be a backup.
If no guardian is named in your Will, a judge will decide who raises and/or takes care of your child. Anyone can ask to be considered for the position, and the judge will select the person he or she deems most appropriate. It is worth noting that, even though you may name a person as guardian in your Will, a judge will still have the authority to overrule should another interested party present evidence that the person nominated is unfit to be appointed.
Most of the time, however, the judge will likely support the person nominated in the Will. You should speak to an attorney if you anticipate any issues about this to make sure your wishes are made clear in your Will. There are lots of things that you must think about before naming a guardian. Most times, people choose to name relatives or close friends, but deep thought must go into the process.
Several factors to consider when choosing a guardian include:
• How well the children and potential guardian know and enjoy each other: to ensure that your child(ren) would be comfortable in their new placement, you must consider how well the child(ren) and potential guardians know each other. Is the guardian someone that regularly comes around the family? Do the child(ren) interact well with the potential guardian? It may sound like common sense, but do they like each other? You would not want to nominate someone who doesn’t like children to be the one to raise them.
• Parenting style, moral values, educational level, health practices, and religious/spiritual beliefs: the best person to name as guardian is someone who shares your values about raising children. You want to make sure that the person you may be trusting with your child(ren) will raise your child(ren) how you would want them raised. This is something to discuss with the person or people you are considering to be your child’s guardian.
• Location: If the potential guardian lives far away, your child(ren) would have to move away from a familiar area, change schools, leave their friends, etc. Ideally, you would want to choose a guardian that is local to your current area so that your child(ren) will feel comfortable. This may need to balance with someone your child is comfortable with, especially if you live far away from family members you would consider to raise your children. For example, your children may be very close to your siblings (their aunt and uncle) but those people live in another state. You may need to decide what is more important or talk to your children if they are old enough to have an opinion.
• Age and health of the potential guardian: Naming an older guardian, such as a grandparent, poses several risks because they may become ill and/or die before your child(ren) are adults. Naming a younger guardian also poses risks because they may be focused on finishing college or starting a career. You should be prepared to have a back up guardian in these cases and again make sure to speak to the potential guardians about any reservations they may have.
• Attentiveness to needs: If your child has special needs, you want to make sure the guardian you name understands and will take care of those needs. Special training or instruction may also be necessary depending on the extent of their needs.
• Emotional preparedness: Naming a guardian who is single or who does not want children may cause them to resent having to care for your child(ren). Someone with a house full of children already may not want more around. Make sure anyone you name in your documents would be OK with the responsibility of taking care of your child(ren). No one wants to be surprised, especially if they are grieving, with an added responsibility.
• Financial preparedness: Raising children should not be a financial burden for the guardian. Always make sure the person being named as guardian is prepared for the financial obligations that come with raising children. This is something you may be able to address in your estate plan to help offset some of the costs. You can ask your estate planning attorney for the best way to make sure your children and their guardian do not face any hardships.
• Willingness to serve: Serving as a guardian is a big deal and not a responsibility to take lightly. It is always a good idea to ask your top candidates if they would be willing to serve. Whether you are a parent or a guardian, raising a child is a huge commitment and something you should consider when choosing a guardian for your child.
Since raising children can be expensive, a lot of people choose to create trusts to provide for the health, education, support, and maintenance of their child(ren) which in turn relieves the guardian of some of the financial burden. Some people also earmark funds to help the guardian purchase a new, larger vehicle, or add to their existing home to ensure there is plenty of room for the extra child(ren.) An estate planning attorney would be able to go over these options with you to ensure your child(ren) and guardian are not facing any additional hardships.
The person in charge of handling the trust is called a trustee, and that person would be responsible for making appropriate distributions for the child’s wellbeing. Naming a person separate from the guardian as trustee can be a good idea if the guardian is not great with money, however, having the same person raise the child(ren) and handle the money can make things simpler because the guardian would not have to ask someone else for money.
With that being said, the best person to raise the child(ren) may not be the best person to handle the money and it may be tempting for the guardian to want to use the trust funds for their own purposes. This is important to consider because you want your children to be well taken care of. Special care should be taken when selecting a trustee and this should be another conversation you have with anyone you are considering to be a guardian.
Selecting a guardian is not easy, but that should not stop you from doing so. At any point in time, you can change your mind and select a different guardian. The chances of needing the guardian to actually step in are usually slim, but if you are a parent, your job is to provide for and protect your children, and selecting someone to take care of your child if anything happens to you is just another way that you are looking out for your child(ren).
Our office regularly consults with individuals and assists in determining the best candidates to ensure your child(ren) are always cared for. To begin the process of drafting a Will and naming a guardian and/or creating a trust to provide for your child(ren), contact our experienced estate planning attorneys today for a consultation.