Custody and guardianship both allow someone else to care for a minor child. The main difference is how they’re set up. Keep reading to find out more.
What is Custody?
Custody is a family court order that allows someone to care for a minor child. One of the most common uses of custody is in divorce cases where the court will decide if the parents share joint custody, one will have primary custody, or, in rare cases, only one will have custody. A parent may also lose custody in cases of abuse or neglect.
What is Guardianship?
Guardianship comes from the probate court rather than family court. The guardian has similar powers to a parent or another person with custody. Guardianship may be used when both parents pass away or when both parents don’t have the physical or mental capacity to care for their child any longer.
Guardianship can also be used in the case of an adult who due to illness, injury, or disability is unable to care for himself or herself.
What’s the Difference Between Joint and Physical Custody and Guardianship?
Custody arrangements are often divided into physical and legal custody. Physical custody means a parent has the right to spend time with a child such as during visitation periods. Legal custody means a parent has the authority to make decisions over things like healthcare and education. With the trend towards awarding joint custody, most parents share both physical and legal custody, but this may not always be the same.
A guardianship is a legal arrangement, although the guardian often will also take in the child physically. If the guardianship is temporary, such as while a parent is in the hospital or jail, the guardian may be limited to making day-to-day decisions for the child during that time rather than having the same authority for more permanent decisions as a parent or someone with permanent custody would.
How Long Do Custody and Guardianship Arrangements Last?
Custody arrangements usually last until the age of majority. The parents or another interested party may request a modification of custody if there has been a significant change in circumstances.
Guardianships can also be permanent until the age of majority, but they may also be temporary. For example, a parent who is serving overseas or going in for a surgery may appoint a temporary guardian.
Can There Be Both Custody and Guardianship?
In most situations, guardianship is only used when both parents are unable to care for a child. If there is joint custody and something happens to one parent, the other parent will usually take on full custody at least until the other parent recovers. If something happens to both parents or the other parent is temporarily or permanently too far away to take on a greater role, the court may appoint a guardian. If either parent becomes able to take on full custody, the court would usually end the guardianship.
How Do Custody and Guardianship Start?
Custody often starts as one of the decisions a judge makes in a divorce case. The judge has the final say and decides what’s in the best interests of the child. The parents can ask for a certain arrangement, but even if both parents are in complete agreement, the judge may opt for a different course of action.
Custody can also arise out of an abuse or neglect case. Terminating or reducing parental rights is a serious decision, and the court will give anyone who such allegations have been made against the chance to answer the allegations. However, custody cases are not criminal trials, and the judge’s ultimate role is to further the best interests of the child.
Guardianship is also overseen by the court, but the process is slightly different. If a parent who is currently of sound mind and able to care for his or her child needs to appoint a temporary guardian, the court will almost always approve that choice. Parents can also nominate a potential guardian in case they are ever incapacitated. This choice is not automatic, since the court will want to check that the nominated guardian is able to currently serve in the role when needed, but the judge gives the nomination great weight. In cases where someone becomes incapacitated without a nominated guardian, the court will appoint a guardian after listening to the recommendations of family members and other interested parties.
How is Adoption Different Than Guardianship?
Adoption can be similar to permanent guardianship in many practical daily aspects, but there are important legal differences. First, if the parents are still living, adoption permanently ends their parental rights, while guardianship does not. A living parent who appoints a guardian may still have a legal obligation to provide financial support for their child, while an adopted child is the sole responsibility of the adopting parents. Finally, the child doesn’t have any automatic rights to inherit from a guardian but do from adoptive parents the same as a biological child.
Because of the permanence of adoption, it would generally only be part of your estate plan in case you pass away. For situations where there is a chance of recovery, you would want to use a guardianship.
Can Divorced Parents Nominate a Guardian?
Since the courts will default to another parent with custody before a guardian, nominating a guardian when the parents are divorced is more complicated. If both parents can agree to nominate the same guardian, such as a godparent, the court would honor that nomination if something happened to both parents. If each parent nominated a different guardian in their estate planning documents, it would first depend on which parent last had custody. For example, if something happened to the mother, the father took custody, and then something happened to the father, the court would start with the guardian the father nominated. However, both sides of the family would be able to appear in court and ask for a different guardian, and the court would act in the best interests of the child.
What About Grandparents?
In most situations, grandparents don’t have automatic legal rights to care for their grandchildren. This doesn’t mean the children can’t spend a week with grandma and grandpa, but grandparents don’t have the authority to make important legal decisions. If something happened to the parents, schools, doctors, and others couldn’t automatically treat the grandparents as guardians.
Of course, in many families, having the grandparents step in would be best for everyone. Judges understand this and favor awarding custody or guardianship in the right situations. You just need to make the appropriate legal arrangements rather than assuming the grandparents could automatically step in.
How Do You Terminate Custody or Guardianship?
In most custody cases, the more appropriate course of action is to request a modification of custody due to a significant change in circumstances. However, the other parent or another person may petition for termination of custody in cases of abuse or neglect.
Where guardianship is voluntary, such as a parent appointing a temporary guardian while they are away, the parent can terminate the guardianship at virtually any time for virtually any reason. Where the parent is incapacitated, members of the family may petition the court stating why the current guardian isn’t fulfilling his or her duties or why a new guardian would be better for the child.
What Happens if a Guardian Dies?
If a guardian dies or is otherwise unable to fulfill his or her duties, the court will obviously end the guardianship. However, the guardian is not treated as a parent for the purposes of appointing a new guardian. Instead of the guardian nominating a successor guardian, the court will look back to see if the parent nominated an alternate guardian. Otherwise, the judge will again listen to any recommendations from family members in trying to determine the best interests of the child.
Do You Need an Attorney?
It can be a good idea to have an attorney help you to properly establish a guardianship to care for your child should the unthinkable happen to you. To learn more about what you need to do, talk to one of the experienced estate planning attorneys at Lilac City Law. We’re conveniently located in Spokane and serve the surrounding communities.
Leaving your children out of your will is not a decision that is taken lightly. But sometimes there are considerations that you need to make that make it the more prudent decision to leave them out of your will. If you decide to disinherit children, it is something you should do as soon as you make the final decision, which will give them less of a chance to contest it and end up with an inheritance you didn’t want them to receive.
Things You Should Consider Before Choosing to Disinherit
You should never use disinheritance as a tool for controlling your child’s behavior. Trying to control a person or situation with money can often lead to bad feelings and bad blood. While there are valid reasons for wanting to disinherit your child, you might want to look at the other possible options first to see if they could be the right fit before choosing to cut your child out completely. Other options you might want to consider before disinheriting your child include:
Controlling Their Inheritance Through the Use of a Living Trust
If you want to allow your child to have money but control how and when they get it, or what they use it for to ensure it is used responsibly, a living trust may be the better option. You can set up a trust to divvy out the money in small amounts over a period of time or have the funds directly sent to pay bills. You will need to provide the trustee with precise instructions on how, when, or for what the distributions can be made. This may be the ideal option for those who are considering disinheriting for fear of the money being wasted. These trusts can even include milestone incentives such as payments for going to college.
Providing the Power of Appointment to Someone Else
You can also choose to provide a trustee with the power of appointment, which can allow your child to re-inherit if they meet certain terms or conditions. This means that the child will have the right to earn their portion of the estate back as long as the trustee of a lifetime trust is given the instruction to allow this to happen.
How to Write Your Children Out of Your Last Will and Testament
Following a few simple steps can make disinheriting your child a little easier and help provide the best chance for your last wishes to be followed. You will need to:
1. Create a Will
While this sounds simple, many people may communicate their last wishes to family members, but not put the information formally down in writing. Failing to have a will in place means that your estate will pass through intestate succession upon your death. When this occurs, the estate will most likely split up between a living spouse and children. Once you have drafted a will, make sure that it is witnessed and notarized. Then place it in a safe place where the person in charge of executing your estate will have access to it.
2. Indicate the Deliberate Disinheritance of the Specific Child or Children
Just not mentioning the child can leave the will open for interpretation and subject to being contested. The disinherited child could claim you forgot to put them in, and since they were omitted and not explicitly listed as being disinherited, it may give them a chance in the court system. Acknowledge the specific child or children by their name in your will and add a statement saying that for certain reasons, you have decided to make no provision for them or their descendants in your will. This will provide the support that you had intentionally meant to leave them out of the estate split.
There are two things that you will need to consider when wording this in your will. First, leave the reason vague, such as “for reasons known to me.” If you state a reason, you open the door for the child to say that that reason is no longer valid. For example, if you said the disinheritance is because they have finances to meet their needs, they could prove that they no longer have the money to keep themselves financially stable. You also never want to leave a child an amount that basically amounts to leaving them with nothing. Doing this will give your child access to the estate information without having to file a request with the court.
3. Inform Them of Your Decision
It is always best to not make this a surprise that a child learns upon your death. While this can be awkward, it will make the process smoother as they will have more time to get over the initial frustration if there is any and not make any hasty decisions without thinking it through. This is especially important if your other children will be receiving money. It can reduce the chance of the will being contested and bad blood to develop between siblings. The one case where informing your child will not be necessary is if you have been out of contact with them for a significant amount of time. They are likely not to be shocked about not being included in the will at this point.
4. Update Your Will if You Reconsider
Things may change over the years since you have written your will, and the child’s circumstances may have changed as well. If you decide that you want to put them back in your will, be sure that you update the will as soon as you reconsider. If there is no amendment to your will, it is likely the original intention will stand, and your child will not have a claim to any of your estate.
Common Challenges for Contesting a Disinheritance in a Will
When adult children contest a will, they will usually use one of three main challenges. Knowing what these challenges are will better help you to understand how to handle your will to provide the best defense against the challenges. The common challenges include:
A challenge of undue influence may be presented by a disinherited child if they feel that the disinheritance was swayed by another party. This means the contestor felt that the testator was under pressure from someone outside of the natural heirs to cut them out of the will. Undue influence often occurs when a third party threatens force or embarrassment to the testator if they do not comply with their requests. For this type of challenge, there is no need to prove the mental state of the testator when they were writing their will but instead show that they are likely to have made a different decision if they were not under the influence of the other person to sign the will. Though the contestor will likely need to have either medical or psychological records, as well as witness testimony to show the influence on the testator.
Lack of Capacity to Create a Testament
Under this type of challenge, it is alleged that the testator did not have the mental capacity to make the will. Contrary to what many people may think, this challenge is not easy to prove. The court requires substantial evidence to confirm that the testator was not of sound mind when they drafted the will. Time also makes this challenge difficult, because if the will was signed many years before, the court would require medical evidence from the time that the will was signed, that the testator lacked mental capacity. Lack of capacity can be even harder to prove if the will was signed in a lawyer’s office since they are extremely cautious about a testator’s mental state when signing any documents.
If you are drafting your own will, there is a possibility that your disinherited child could challenge it based on improper execution. There will be specific laws to follow depending on the state you file in, but most of the time, you will need to be at least 18, of sound mind, and in the presence of two witnesses who have no financial interest in the will. The witnesses must be in the presence of the testator, and all must witness each other sign the document. You can lessen the likelihood of a challenge of improper execution by speaking with an experienced legal service to ensure that you have followed the protocols required by your state.
Disinheriting a child from your will is not a difficult process, but one where legal advice may help make the process smoother. If you are unsure of the requirements for executing a will in your state, contact a legal service to ensure that you have everything completed and filed properly to ensure your final wishes are fulfilled in the want them to be.
As a couple with a family, hopefully, you & your spouse have at least started the process of estate planning.
If you are going through a divorce, however, these plans will probably need to change. You might even have to start over from the beginning of your estate-planning process.
You will want to readdress items that are needed; now though in reference to new parenting plans and other accommodations of the divorce.
In addition, you will need to know what is going to happen to your children should one or both of you become unable to care for them.
Here are the plans that you will need to have in place. Making these decisions in advance will help alleviate the stress that automatically comes with a divorce.
After a Divorce
Custody and visitation are the most critical decisions that need to be worked out. You will need to decide whether one parent has sole custody or if it is to be shared. This includes visitation rights.
In most cases, both parents care deeply for their children and the children love both parents. Older children may even have a preference for where they want to spend the most time. Courts will consider this, especially after a child turns fourteen.
In some cases, however, one partner may not be a fit parent. Maybe they are abusing drugs or alcohol, have an untreated mental illness, or travel extensively for their career and aren’t home very often.
You will want to make sure the children are not exposed to any abuse. In cases where one parent is considered unfit, it is up to the other parent to prove this in court.
Will Take Care of Your Child?
Guardianships can be either temporary or permanent. In the case of an illness or injury, a parent who has custody may not be able to care for the children. Typically, the courts will automatically give the guardianship to the other parent.
In cases such as those mentioned above, you will want to make sure you have provided proof of the other parent’s unfitness and named a suitable guardian who can temporarily step in until you can return to parenting. In the case of death, a permanent guardian will need to be found.
the children’s other parent will be the first choice unless circumstances make
that unwise. Making plans now will help prevent the children from possibly
ending up in a dangerous situation or with strangers until things are sorted
in Your Estate Plan, Post-Divorce
Child support is not the only financial consideration that needs to be taken care of after your divorce. The future holds expenses, such as for higher education, medical bills, memberships, and more. Decisions need to be made regarding who is responsible for each of these expenses.
It is also essential to decide if any financial arrangements, such as trust funds, will automatically be entrusted to guardians or if you will appoint someone solely to manage the financial well-being of your children. This can be necessary when whoever becomes physical guardian, even the child’s natural parent, is not good with money or it is felt they may not spend it appropriately.
Getting Advice on
Your Estate Plan After Your Divorce
At Lilac City Law, our experienced estate law attorneys understand that parenting
plans are often the most difficult ones to make during a divorce.
are here to help you arrange the estate plans that you believe will take care
of your children, not only now but also in the future.
If you are facing a divorce, and are unsure how your best-laid estate plans will be impacted, contact our office today and see how we can help ease your mind.
Happily ever after rarely turns out how it is depicted on the big screen.
It starts great, but over time there is trouble in paradise. Despite your best efforts, it might not work out.
Divorce happens. And, if it is happening to you, you will want to know how it affects your will beneficiary designations.
Divorce and Will Beneficiary Designation
The last thing on your mind might be your death. But, your will and beneficiary designation is a serious part of your divorce. Take the time to do some proper estate planning.
Your Beneficiary Designation Comes First
You have updated your will to remove your ex. But, that is not enough. You must update the beneficiary designation, too.
Not only on your will but on all your other policies, too.
On your death, a designated beneficiary always comes first. It will not matter what your will says. Your estate will pay out to the beneficiary, even if it is your former spouse.
Check these documents to be sure your beneficiaries are up to date after divorce:
Trusts or Living Trusts
Work-related Policies and Death Benefits
Remember, if you do not name anyone the state gets to decide. Take control of your assets by naming a beneficiary of your own choice.
What About the Will?
What about your will, though? Should you update it?
The answer is yes, though it is not as crucial as your beneficiary designation.
Most of the states in the US will do one of two things. If you leave your ex in your will, they will determine them to be ineffective or revoke their rights. Either way, they get no part of your assets.
Keep in mind this only applies to an ex-spouse. Not their children or any other relatives you may have named.
Do yourself a favor. Update it, anyway. It is good for your peace of mind.
Review and Update After Divorce
The only way to know for sure that your assets get divided as you want is to say so. Review and update both your will and your beneficiary designations after your divorce.
But, who should you choose?
If you have young children, you may want to consider a trust. Choose a close family member to oversee it. Your parents or siblings can be good choices.
If you have a new partner, you will need to decide if you have reached that level of commitment. Let your emotions settle, first. Use caution in designating a new partner soon after your divorce.
It is a good idea to consult an attorney if you have questions.
Take Charge of Your Assets, Today
Divorce is another stage in your life. Do not leave the distribution of your assets to fate or the state.
Determine your own distribution of assets. Update your will beneficiary designation, today.
In today’s society, most things are done on the computer and saved to a hard drive. Important documents are very rarely printed out and filed in a file cabinet or folder. However, there are benefits to printing out legal documents including your guardianship plan.
Here are four benefits of printing out your guardianship plan on good ol’ paper.
Most people have passwords on their computers. If you should die or become incapacitated, how will your loved ones get access to your guardianship papers if you have a password on your computer? If they cannot figure out your password they will have to trust the judge to make a decision on who is best to care for your children. This will make it difficult for your loved ones to ensure your wishes are being met for your family.
Even if they are able to get access to your computer, they may not be able to figure out where you saved the guardianship papers. Everyone has a different way of filing documents on their personal computer. For example, one person might put their guardianship papers in the file titled “Important Documents” while someone else might put it in a file titled “Stuff to Keep”.
Having it already printed and labeled in a file cabinet can be the easiest way for your family to access it. In fact, here’s what we do when we create a plan for a client!
Verbal communication is not enough. It is great that you and your spouse agreed on someone to take your children and that person agreed to step in. However, you need a legal document stating who will be the legal guardian for your children. If you print out your guardianship papers, you can give a copy to the person who will be caring for your children and you can put one with the rest of your estate planning paperwork. Having more than one copy ensures that it will be found when needed.
Printing out your guardianship papers allows you to give them to your appointed guardian along with any other instructions you may have. For example, you can write a letter of instruction to them. You can explain your hopes and expectations for your children’s upbringing including education, activities, and religion.
Having your documents saved on your computer risks them being compromised by hackers. This may not happen often but you do open yourself up to the possibility if you are saving your guardianship papers on the computer. Other security threats you risk by saving your guardianship papers online are:
Ransomware (software designed to lock up a computer until a ransom is paid) (very rare for personal computers)
Data failure (data and documents can be lost due to software or hardware failure)
Hackers are not the only ones that can change your document. If someone really wanted to, they could log onto your computer and change your guardianship papers to benefit them. If you have them printed out and stored safely then they are much harder to be changed.
Printing out your guardianship papers has definitive benefits that will ensure your wishes are met if you are to become incapacitated or if you die.
Talk to an Estate Planning Attorney About Family Protection and Guardianship, Today!
Regarding marriage, Washington state does not recognize common law. Instead, Washington State looks at a long-term, committed relationship as a meretricious relationship or cohabitation.
Being in a meretricious relationship versus being legally married can affect what happens to your property and assets should one of you become disabled or die.
What is a Meretricious relationship?
In the state of Washington, a meretricious relationship is where there is cohabitation in marital nature but not legally on paper. You might casually refer to this as “living together, but not married.” So, for example, you and your significant other have been in a relationship for the past 20 years where you live together, have joint bank accounts, and make joint decisions on all financial decisions, but you are not legally married then you can be considered to be in a meretricious relationship.
Several factors that the court considers when determining if it is a meretricious relationship are:
Length of the relationship
Time of continuous cohabitation
Nature of the relationship
Extent to which the funds and assets have been co-mingled
Intent of the parties in question
Stability and commitment to your relationship
Living as though married (have a family together, refer to each other as husband and wife, etc.)
Each case is looked at individually. A couple generally needs to live together continuously for a minimum of 2-3 years and present themselves as being in a committed relationship like a marriage.
Washington state recognizes same-sex relationships as a meretricious relationship.
Even though the state recognizes meretricious relationships in certain situations, it does not give the relationship the same rights as legal marriage.
How will this affect my estate plan?
If you are in a meretricious relationship, you want to make sure that you have an estate plan in place. Your assets will be divided according to the court as they see fit if you do not have specific wishes in your will, and you do not have a legal marriage in place.
Having a comprehensive estate plan ensures that the division and distributions of your assets are done the way you want them to be.
Things you can do:
Put it in Writing
Putting your wishes in writing in your will ensure your assets will be divided the way you want them to be. In some cases, such as a same-sex couple, your partner could be completely left out if the state you live in does not recognize same-sex marriage. In other instances, your house could be awarded to your children instead of your partner because it was not in your will.
Consider a Trust
A revocable living trust keeps your assets from having to go through probate. If you die the court will appoint a someone to manage your probate estate, and if they do not recognize your partner as speaking with the authority of a married partner, that could create ambiguity you want to avoid.
Cash, investment accounts, and real estate assets should be put into joint ownership so they can pass to the surviving owner. Also, if the couple has children together and only one person is the biological parent, the not-biological parent should adopt the child to get parental rights.
If you are in a meretricious relationship, you should contact a family law attorney. They can help you fill out all essential estate planning forms and help you make sure your assets are divided and distributed according to your wishes.
Contact Lilac City Law for help in setting up a living trust
If you are considering a divorce, it’s critical to understand the impact of your divorce on what would happen in the event of your incapacity or death, either during the divorce or after.
Unfortunately, most divorce lawyers do not give any thought to incapacity or death, simply because they do not have training on these issues specifically and it’s not at the forefront of their minds when they are advising you through your divorce.
So, that means you may need to be the one to bring it up.
Things to Keep In Mind
When you do, here are some things for you to keep in mind:
Automatic Temporary Restraining Orders
As soon as you file for divorce, automated “orders” go into effect that will limit what you can do with your assets during the divorce. These are generally called Automatic Temporary Restraining Orders or “ATROs” and they impact how you can change prior estate planning documents and what you can do with future estate planning decisions while your divorce is in process. Talking with your divorce lawyer about these issues (or making an appointment to meet with your Personal Family Lawyer®, if we have created your estate plan before you file for divorce) is a wise choice.
Temporary Documents and POAs
If you have already filed for divorce, you may want to revoke any existing powers of attorney and health care directives giving your soon to be ex-spouse control over your assets and your medical decision-making if you were to become incapacitated, as well as execute what we call a “divorce will”, which is a “temporary” Will that would cover the disposition of your assets in the event of your death during your divorce. Again, talk to your divorce lawyer about these temporary documents that can be executed while you are in the divorce process, and then ensure he or she is coordinating with us on your behalf to get these documents prepared and signed.
Be sure to update your “temporary” during divorce estate planning documents once your divorce is final, and all asset dispositions have been handled, to consider your new reality.
There Are Many Ways to Get Divorced
The traditional litigation/fight oriented divorce could require years of litigation, and a division of assets based on legal rights, rather than your specific needs and desires.
Alternatively, there is a movement today towards “conscious uncoupling” in which you and your spouse collaboratively tailor the outcome of your divorce to meet each of your specific needs and desires, as well as the overall impact on your family.
With this method, instead of having a judge make all the important decisions in your divorce, you can make decisions that are right for you. This is especially helpful when dealing with alimony.
Also called spousal support or spousal maintenance depending on the state, is financial support paid to the non-income earning spouse during the divorce proceeding and after the judgment.
Alimony can be paid a number of ways. Most commonly monthly, over a predetermined period of time. Durational payments carry the benefit of a steady income for the recipient but can be modified under certain circumstances, leaving some uncertainty, but also room for continued communication about what’s needed over the non-income earner’s life as well as what’s possible over the lifetime of the income earning spouse.
With a conscious uncoupling process, the needs of each spouse can be revisited over time.
Because monthly payments (and a continuing relationship) aren’t right for every family, alimony can also be paid in a lump sum. This is also referred to as alimony buyout.
Lump sum alimony either in the form of a cash buyout or a disproportionate property division is not subject to modification or termination, so it creates a finality to the relationship that isn’t there with a continuing monthly payment.
If you do decide on continuing monthly payments versus a lump sum alimony payment, it’s critical to ensure that those payments would be able to continue in the event of incapacity or death of the spouse paying alimony. In that case, please talk with us about insurance options to guarantee the alimony. As well as ensuring that the spouse paying alimony has properly handled those payments in his or her estate planning documents.
If you decide on a lump sum alimony, be sure to update your estate planning to reflect the new assets you now will have titled in your own name. We can discuss trust planning options to ensure those assets stay out of Court, if and when anything happens to you.
Financial Guidance on Negotiating a Divorce
For the legal and financial guidance in negotiating a divorce that works for you, come in to meet with us for a Family Wealth Planning Session, if you are not already a client, so you can get clear on what you own, and what would happen to what you own, in the event of your divorce. And, if you are already a client and considering divorce, please contact us so we can help you consider your options and find the right lawyer or lawyers to support your process through the divorce.
As your Personal Family Lawyer®, we can guide you in creating a comprehensive financial plan that protects and preserves your wealth while meeting all your financial obligations. Before the session, we’ll send you a Family Wealth Inventory and Assessment to complete that will get you thinking about what you own, what matters most to you, and what you want to leave behind.
“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 discernable 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 gameplan, with an experienced attorney, how things would work out in a worst-case scenario.
Lilac City Law Is Your Guardianship Planning Law Firm in Washington & Idaho
We are here to help you find peace with the unknowns that the future throws your way. That’s why we put so much effort into informing you of the process through this blog. We are passionate about building and protecting strong families. Please reach out to us by phone or through the contact form below. We’ll get you set up immediately with a friendly and welcoming estate planning lawyer that will walk you through this process step-by-step.