How Do I Appoint a Guardian For My Child If I Die?

How Do I Appoint a Guardian For My Child If I Die?

 

Honestly, no one wants to think about this question. It’s a tacit reminder that we are indeed mortal and, in some cases, we may leave this world before we are ready. 

What are our plans if this were to happen?  Putting your assets in a trust, or last desires into a Will – helps to make sure your financial holdings are passed on to whomever you want them to go.  However, if you don’t create a care plan, or declare a guardian for your children the courts may decide who cares for your children if you die.

Are you comfortable with a stranger making this decision?

A Stranger Might Raise Your Children

“My greatest fear, someone I don’t know raising my child… What if something happens to me, who is going to take care of my child?”

This sentiment is a visceral fear that most parents have at some point.  And for a good reason; when we raise our children, we are trying to put the best of ourselves into them.  That means our world view, and our lessons learned, even our religion or philosophy for life.  In short, we are trying to instill our values and love.  But not everyone has those same values, do they?

Before we get into how to go about setting up a Guardianship Plan, this is something to consider…Who should you appoint as a guardian for your children in the event of untimely death?

Who Should Raise Your Children if You Die?

Establishing the Guardianship Plan (Kids Protection Plan) is the last step in the process of protecting your kiddos.  Before you even get that far, you should first be thinking very seriously about who can provide a lifestyle for your family that you’d be ok with raising your family. 

Often this is a sibling, parent, or maybe even an adult child.  However, it’s not uncommon to consider someone who isn’t directly related. Your internal family dynamics aren’t on trial; it’s a very personal consideration and decision you are making in the best interest of your family. Don’t unduly narrow the scope of consideration; this is a choice you are preparing for everyone’s best interest.

Here are some basic requirements and some other things to think about:

Your children’s guardian must be:

  • At least 18 (in most cases)
  • Able to fulfill their duties as a guardian
  • Able to financially provide for your children

Your children’s guardian should be:

  • Of similar outlook to you and your partner
  • Knowledgeable of your goals as a family and parent(s)
  • Capable of providing emotional support for your children
  • Stable (family wise, financially, etc.)
  • Someone that you’re comfortable having around your children.
  • Aware that they are being asked to be appointed as a guardian

How to Appoint a Guardian For Your Children

If you know who you want to take care of your children, the process for establishing a guardian involves declaring your desires in such a way that it will stand up to scrutiny by a judge if necessary. That’s a wordy way to say that just because you have a wish for a guardian, it doesn’t mean your preferences cannot, or will not, get challenged.  This potential hurdle is why so much consideration should go into your decision of who to appoint as a guardian.

A verbal agreement, for instance, is quickly challenged and will not instruct a judge what your wishes are. They may consider it, but without proof, your children will be relying on a judge’s discretion.  In this case, a judge well-meaning meaning but does not know you and will only know you through what information you leave behind if any. Frankly, there are too many unknowns here for me or most moms to feel comfortable knowing things will, “turn out ok!”

Better than a verbal agreement, a quickly drafted written agreement provides at least some potential protection.  In this sense, an informal written agreement certainly is better than a verbal agreement, but it can still be easily challenged.  When looking for how to prepare documents to stand up to future challenges, we always advise putting them together in such a way that it answers all the questions a judge would have about your wishes. That’s why when we prepare guardianship plans, we put all these wishes, desires, values, and more into a well prepared, and notarized, Last Will and Testament.

Placing your guardianship plan in your Last Will means a couple of things.  First, because you probably had an attorney’s input on the structuring of the guardianship plan, it will be structured to be clear enough to avoid being challenged.  Second, it automatically becomes part of the probate process, for which your family will likely have an attorney helping them through.  If the plan is part of your Will, the attorney will be working to make sure your wishes are carried out according to what you have drafted.

Alternatives to Placing Your Guardianship Plan in a Will or Estate Plan?

It is possible to create a Guardianship Plan and not have it be part of your Will. Here’s a free and easy way for you to do it right now.<- This will get you set up with the basics of a Kids Protection (and Guardianship) Plan. You’ll still want to consider having an attorney involved in this process, even if you can use that link to start laying out your desires without one.  The benefits, as described before, are that with an attorney’s assistance you’ll be creating a plan that will stand up to the scrutiny the law requires a judge to pay to your desires and the well-being of your children.

What Happens to My Family If I Die?

Strictly speaking, death isn’t the only way a Guardianship Plan might become necessary.  A Guardianship Plan might be essential if you (and your partner) become incapacitated in some manner too. This potentiality in and of itself describes why you might want to make this more of a protection plan than something you place in your Will and forget.  If you haven’t died, but need to appoint a guardian, you likely still want the plan to support your desires!

Back to the point, what happens if you die?  The processes are determined by the state you live within, but generally speaking, a guardian will be required to establish the ability to provide for your children. This procedure occurs in a court setting. Here’s a great list of requirements and resources for more information, by state.  Of course, if you have questions about this, you can always respond in the comments below too, or send us a question/message here.

Have you Been Through this Process as a Child or as a Guardian?

We’d love to put together a list of tips or lessons learned from the perspective of a child having gone through this, or from the perspective of a guardian having adopted the children of deceased parents.  Please feel free to reach out to us so we can help parents better understand how this process works.  You can contact us here or connect with us on Facebook.

I’m Ready to Protect My Family if I Die, What Do I Need to Do?

Reach out to us via the contact form below, or simply call our office. Our team will reach out to you and send you all the information you need.  We are here to help you protect your family.  It’s our mission and our passion to support you and your family. 

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