“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?”
Who Would Raise Your Children If Something Happened to You?
Honestly, no one wants to think about this question. It’s an implicit reminder that we are indeed mortal, and, in some cases, we may leave this world before we are ready.
Who will you leave your child with if you die? 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
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?
Do You Want a Stranger to Raise Your Children If You Die?
Establishing the Guardianship Plan, also called a Family Estate Plan, is a critical 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
What Is a Guardian?
Think back to school forms asking for a parent or legal guardian. A guardian is a person who takes care of someone else when that person is incompetent to handle their affairs on their own. This could be due to a serious injury or illness. When minor children are involved, they may need a guardian if both of their parents are incapacitated or pass away.
A guardian will generally make similar decisions to what a parent could make for a child — even when the person needing a guardian is an adult. This may include medical decisions and, for minors, other life decisions such as where to go to school.
Guardians may also cover managing the entrusted person or child’s finances. However, finances are sometimes broken up into a separate conservatorship. Exactly what a guardian or conservator can do will be spelled out when the court approves the guardianship or conservatorship.
A guardian is usually charged with providing for all of the child’s necessities. These necessities include providing food, shelter, clothing, and any other items that may be needed. Of course, most people consider a loving home and ample opportunities to succeed as necessities as well.
If the appointed guardian cannot provide these things themselves, they must find a home that is suitable to offer those in their care.
In many cases, the guardian that is named by the parents (or appointed by the court) will personally take on the task of raising and caring for the child.
How Is a Guardian Different from Godparents?
When your children were born or shortly after, you may have appointed godparents. Godparents are often expected to step in and take charge of the children if something happens to a parent, but appointing a godparent is largely a religious or ceremonial action. Godparents aren’t directly recognized under the law.
To give a godparent the legal authority to act and to avoid conflicts with other family members who may wish to step in instead, you will need to go through the legal process of appointing the godparents as guardians, trustees, or other legal roles.
Do Grandparents or Other Relatives Automatically Become Guardians of Minor Children?
Grandparents or other relatives do not automatically become guardians of minor children if something happens to the parents. They can generally take the children in temporarily as long as there are no objections from the rest of the family, but their authority to make decisions regarding school, doctors, etc. would be limited to emergency decisions only. In addition, any disputes between family members about what should happen could be disruptive to the children’s lives during an already difficult time.
How Is a Guardian Different from a Power of Attorney?
A power of attorney might grant all of the powers that a guardian can exercise. The difference is mainly timing. You sign a power of attorney when you have full mental capacity. A guardian is only appointed after you’re incapacitated. Part of the guardianship appointment process can include reviewing the wishes you specified when you still had full mental capacity. However, a power of attorney cannot be executed if you have diminished mental capacity, and it may be voided if a court finds you lacked capacity when you signed it.
Because a power of attorney can be limited in scope based on how you had your lawyer word it, it may not cover all of the actions that need to be taken on your behalf. In those situations, a guardian would be appointed to fill in the gaps.
Choosing Your Children’s Guardian
Your chosen guardian may fill-in for you temporarily, while the authorities figure out what to do, or they could end up being the person to raise your children to adulthood. You have a lot to consider with this decision. You can’t assume that your partner or your parents will step in either.
While it is rare for something to happen to both parents of a minor child, it does occur, and the consequences are simply too severe to not take a few simple steps to select and legally name guardians the right way.
Define Your Ideal Guardianship Candidate the Right Way
The first step in selecting a guardian is to come up with a list outlining the qualities and attributes you and your partner value most when it comes to the long-term care of your children. The list can mirror your parenting philosophy and style, as well as list the qualities that would make up your absolute “dream” guardian.
In addition to qualities like parental values, discipline style, religious/spiritual background, kindness, and honesty, you also need to consider more practical matters.
Is the person young enough and physically capable of raising your kids to adulthood? Do they have a family of their own, and if so, would adding your kids to the mix be too much?
Geography should also come into play—do they live nearby, and if not, would it be a major hardship to relocate your children? Is their home in a location you would feel comfortable having your kids grow up in?
One thing you may think you should consider is financial stability, and that is a frequent misconception. Even though the people you name as legal guardians for your children will be making decisions for their healthcare and their education, they do not need to be the ones managing your children’s financial needs.
Ideally, you will leave behind ample financial resources for your children and the people raising them. You can do this by establishing a trust for those resources and naming a financial guardian, or trustee, to oversee them.
Make a list of Candidates
Based on those parenting qualities, start compiling a list of people in your life who match your ideals. Be sure to consider not only family but also close friends.
Though you may feel obligated to choose a family member, this decision is about what is best for your children’s future, not trying to protect someone’s feelings. And if you are having trouble coming up with enough suitable candidates, try coming up with people who you would NOT want as guardians, and work backward from there.
Or consider the person a judge would likely select if you did not make your own choice and whether there are any other people you would prefer to raise your children.
Determine Back-Up Guardians
It would be a big mistake to choose only one guardian for your child. It is impossible to say what the future holds, and it could be that the guardian you select passes in an accident with you, leaving no discernible choice for a guardian to your child.
Make sure that you have a solid list of three or four guardians and the order in which you have chosen them. It never hurts to be too careful. When the life of your child is in the balance, everything helps.
Just because someone has been with you through thick and thin does not mean you should name them as your child’s guardian. Your friend, you have known from elementary school but still lives in his mom’s basement, might want to be on the list but it would be wise to leave him out.
Select Temporary Guardians (aka First Responders)
In addition to legally naming long-term guardians, you also need to choose someone in your local area to be a “first responder,” or temporary guardian. This is someone who lives near you and who is willing to immediately go to your children during a time of crisis and take care of them until the long-term guardian is notified and appointed by the court according to your long-term guardianship nomination.
If your children are in the care of someone like a babysitter without legal authority to have custody of them, the police will have no choice but to call Child Protective Services and take your children into the care of the authorities.
From there, your children could be placed in the care of strangers until your named long-term guardian shows up, or until the court decides on an appropriate guardian.
This is an area where plans that only name a legal guardian through a Will typically fail. Beyond naming just a long-term guardian, you need a short-term, temporary guardian who is named as the first responder and knows exactly what to do if something happens to you.
Once you have chosen your long-term guardian, it is imperative that all temporary caretakers know exactly how to contact them. This precaution is not just about your death—it also covers your incapacity and any other situation when you are unable to return home for a lengthy period.
Practical Considerations of Naming Guardians
The first thing to think about is the fact that this person could raise your kid! If that happens, your child will be informed by your guardian’s values and beliefs.
Does the guardian share your core values and act in a way that is decent and respectable by your standards? What sorts of things do they genuinely value, and would they be willing to take the time to instill those values to your child?
Think ahead to the near or distant future — can you see your potential guardian making enough money to support your child?
Are they hard-working and responsible enough to take on the duty of raising and supporting a child? It is hard to instill that motivation in someone without kids until it is their responsibility, too.
Give strong consideration for those who will be able to support your family through thick and thin.
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 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. This will get you set up with the basics of a Family Estate (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.
Do You Need a Guardian If You Left a Trust for Your Children?
You may have set up a trust to provide for your children financially in case something happened to you. The trustee is then able to manage their financial affairs in accordance with the trust.
However, someone still needs to take custody of the children to manage their daily lives and important life decisions. This is where you need to nominate a guardian, and your estate planning documents should lay out the responsibilities of both the trustee and the guardian.
What Happens at the End of a Temporary Guardianship?
A temporary guardianship only has a legal effect for the designated time or until the specified condition is met.
You may sometimes hear a temporary guardianship referred to as an informal guardianship. This is because the temporary guardianship may be set up outside of the courts. Often, the informal guardianship is set out in a notarized letter. This is not as strong as a power of attorney or full guardianship but can still be useful in certain situations. One of the most common uses is when a child will be going to live with a relative for a while and the parent will still be able to address any concerns that arise while the relative assumes primary care.
What is a Testamentary Guardianship?
A testamentary guardianship is a guardianship listed in a parent’s will. This is another type of informal guardianship.
It is not possible to legally leave a child to another relative in a will even when well-intentioned and the whole family agrees. The job of a will is to answer questions about property distribution.
What a testamentary guardianship does is simply to make the wishes of the parent known. Courts will usually honor these wishes on a temporary basis if the family is in agreement, but the full guardianship process will need to happen before the guardian becomes permanent.
What is an Emergency Guardianship?
Some people may refer to the temporary guardianship they’ve set up as an emergency guardianship, but an emergency guardianship usually means a temporary guardian appointed by the court. Courts usually appoint emergency guardians when someone has a serious accident or illness and needs a guardian but never nominated one. The court appoints the emergency guardian for a limited period of time to handle the emergency while the regular guardianship process plays out.
Who Supervises a Guardian?
Once appointed, a guardian must make regular reports to the court. This includes financial information as well as other major decisions. Other family members can also go to court to contest the guardianship if they believe the guardian is doing something improper.
What is a Limited Guardianship?
A limited guardianship means the guardian has limited powers. For example, you may wish to appoint a guardian to make medical decisions and a separate conservator for financial decisions. A limited guardianship can either be temporary or permanent.
Do I Need a Temporary Guardianship if I Have a Permanent Guardian?
Even if you’ve nominated a permanent guardian, the court still needs to formally approve the guardianship before it can take effect. Designating the same person to act as your temporary guardian can avoid any ambiguity about what should happen while that process plays out. In addition, you may still need a backup temporary guardian in case the permanent guardian can’t immediately step in.
What If There Is a Conflict Between a Guardianship and a Power of Attorney or Trust?
There should be no conflicts with a guardianship and power of attorney or trust because the court should appoint the guardian in consideration of other estate planning documents. The guardian should only carry out duties not already provided for. To avoid confusion, you should attach your other estate planning documents to your nomination of guardianship to ensure that the judge will be aware of their existence. If a power of attorney or trustee believes a guardian was appointed improperly or is going beyond their role, they can contest those actions in court.
Are there Downsides to Being a Guardian?
Whether a guardianship is for an adult or minor children, being appointed as a guardian is a major responsibility. Like a parent, it can mean making tough choices and sometimes needing to put the other person’s wellbeing before the guardian’s own. The nominated guardian will also need to go to court during the nomination process and will need to make ongoing reports to the court as long as they remain guardian. Being a guardian is a lifetime appointment unless the judge appoints someone else.
Does a Guardian Have to be Local?
A guardian can theoretically live anywhere in the world. However, the judge will want to make sure that the guardian will be able to effectively perform their responsibilities without being unduly impacted by long-distance. For minor children, since they will often go to live with the guardian, the judge may also consider how a move would impact their lives and their access to other family members. You can and should include your wishes on these issues in your planning documents so the judge can understand the choices you made and to avoid conflicts between family members.
If you’re relying on a long-distance guardian, you should also consider who will act in a sudden emergency such as you being rushed to a hospital. You may want to have an alternate power of attorney that gives a more nearby family member the power to act until your guardian is able to step in.
How does Guardianship Work With Divorced Parents?
A temporary guardianship or other arrangements can’t override the other parent’s parental rights. Generally, both parents would need to agree to a temporary guardianship. For example, both parents may want to jointly make a plan in case something were to happen to both of them.
Otherwise, courts would generally look to one parent to take over if something happened to another. For example, if two divorced parents with joint custody lived in the same town and one was hospitalized, the child would usually go to live with the other parent rather than a temporary guardian appointed by the one in the hospital. If they lived far apart, a temporary guardian might come into play while travel and other arrangements are made.
Should Children Know About Temporary Guardianship Plans?
Depending on their age and maturity, it can be a good idea to let children know your plans for a family member to take care of you and/or them if something were to happen. This allows you to gain their input and can also ease fears they have about being orphaned that you may not even be aware of.
Who Pays for Legal Fees During Guardianship Proceedings?
Your appointed guardian should understand that they don’t have to take on legal costs. If you have liquid assets, the court will pay the attorneys reasonable fees from your funds — just like any other of your expenses would be handled. If you don’t have liquid assets, there is a special guardianship fund established by the government. In no cases does the appointed guardian pay for court fees, although you may wish to set aside money to cover other expenses they may face while acting as a guardian.
Please note that this is separate from creating your nomination of guardian documents. Those costs would be arranged between you and your attorney just like any other legal work.
How Quickly Can a Guardian Be Appointed?
Even for a nominated guardian who isn’t contested, the court process is usually measured in weeks if not months. During an emergency situation, your family could petition the court to appoint a temporary guardian pending full court review. This person could potentially be the guardian you nominated.
In more urgent circumstances, such as an emergency room doctor needing an immediate decision, any power of attorney or living will documents that you created and are readily available will be used. Otherwise, the hospital or other entity would attempt to contact your next of kin and follow their authority in accordance with local law.
Are There Situations Where Family IS NOT a Good Plan for Temporary or Permanent Guardianship?
Absolutely! Here are a couple of examples.
Your Family Has a History of Abuse
Not everyone grew up in a loving family. If you grew up in a family in which you were abused in any way, you likely do not want to put your children into the same kind of situation.
If there was/is regular alcohol abuse or drug use this perspective might also be true. Children become at risk when they are left to fend for themselves because the adult who is supposed to be in charge is a victim of addiction.
We are discussing family here, but it is important to consider the family of ex-spouses or the exes of those who might gain custody of your children.
When you have a list of the family that absolutely should not have custody in any way of your children, you will want to gather any paperwork that proves your reasoning for not wanting the courts to give them guardianship.
Keep a copy of these papers with your essential paperwork, provide a copy to the person you want to have custody, and if you have a lawyer, make sure they also have a copy.
Adopting Your Children Would Create a Financial Hardship
Sometimes family members would willingly step up and take care of your children. Raising kids is, however, an enormous financial responsibility.
Unless you have a great deal of money, you can set aside to help pay expenses over the coming years, adding even one child to an established family may cause a financial burden. If you have several children, this makes it extremely difficult.
You do not want to put your family members in a position that will make it hard for them to provide for their own needs and that of their children while also providing for yours.
These people may be willing to try, and they may even be considered good choices as temporary guardians until a permanent one can be found.
Think about the custody of your children in financial terms may seem hard when it is their safety in question, but it is a practical matter that cannot be overlooked.
And if you plan early enough, you might be able to set up a trust or will to help alleviate any financial burden your family would have from your untimely death.
Your Family is Unwilling or Unable to Adopt Your Children
Your parents raised you and any siblings. They may have been wonderful parents and given you all the love they had, and you might think they would make the perfect choice for granting guardianship.
Take time to think this through. First, they are older than you. It is likely that time has created a situation in which they are no longer physically able to keep up with the rigors of raising a child.
They may also be getting to the age at which they will not be around long enough to see your children to maturity.
You likely want to avoid a replication of the trauma and uncertainty that led your children to need new parents to raise them.
On the other hand, maybe you have no family members who are willing to step up and take over: Your parents are enjoying their retirement, your siblings have lives of their own that they do not want to upset, or there may be other reasons.
Whatever the case, you do not want to choose someone who would refuse the responsibility and leave the care of your children up to a court or foster system.
What Guardianship Forms Do I Need to Complete NOW to Protect My Children?
1) A Last Will & Testament: A last will and testament may be the most important form you can have in your estate plan.
Your will is not only the place for you to outline what happens to your property after you die, it is also where you might name a guardian for your children (or pets), identify someone to handle your property after death on behalf of your children, and identify an executor to manage your property from the time you die until your estate is settled.
2) Temporary Guardianship
3) Letter of Instruction: One more guardianship form that gets overlooked is a letter of instruction. This is the place where you explain your hopes and expectations for how your children are raised. These include decisions about your children’s education, activities, and religion. Be sure to update this letter as your children grow and their interests and needs change. Also, make sure you share and discuss this letter with your chosen guardian(s) so there are no surprises.
Create a Plan and Keep Your Family Protected
Remember that plan you laid out before the birth of your children? Remember how many contingencies it accounted for? You did this because even though you hadn’t met them yet, your children and their futures mattered dearly to you. You recognized that the more you planned ahead, the less likely the worst-case scenario would occur.
In the worst case of the worst case. A judge who doesn’t know you or your wishes will be forced to make decisions for your children. Without your input. That’s what could happen if you don’t establish a family estate plan with strong, thoughtful, guardian nominations.
What are your desires for your children in the event of your death or incapacity? Who do you want to take care of your children? Who is going to manage your assets?
A Guardianship Attorney Knows the Processes
Filing for guardianship can be time-consuming. The guardianship process might include petitions, hearings, and evidence – and may even face challenges from multiple parties seeking guardianship of your children.
A good guardianship lawyer will help you or your preferred guardian expedite this process. If like Lilac City Law, the guardianship attorney is the drafter of the plan and other aspects of the incapacitated or deceased’s estate plans, they will understand how the guardianship proceedings play into the full scope of this transitional period.
You can imagine that this process, can get complicated very easily. Especially if minors, money, or assets are involved. The best thing you can do to mitigate potential issues ahead of time is to game plan, with an experienced attorney, how things would work out in a worst-case scenario.
You Need a Compassionate, Intelligent, and Insightful Estate Planning Attorney For This
Life is complicated! If you are read this far, you know how much there is to consider in each estate plan. There is no “one size fits all” approach. In a pinch, would you rather rely on a “one size fits all” document you bought off the shelf somewhere, or would you prefer your custom document that matches your scenario, your family, your assets, and your risks?
If you are ready to start having a conversation about your estate plan / child-protection plan, fill out our contact form and we will put you in touch with a world-class estate planning attorney.