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

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

Who Would Raise Your Children If Something Happened to You?

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Randi L. Johnson, Lilac City Law, Estate Planning, Social Security Disability, VA Disability

By Randi L. Johnson

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

 

Honestly, no one wants to think about this question. It’s a tacit reminder that we are indeed mortal and, in some cases, we may leave this world before we are ready.  What are our plans if this were to happen?  Putting your assets in a trust, or last desires into a Will – helps to make sure your financial holdings are passed on to whomever you want them to go.  However, if you don’t create a care plan, or declare a guardian for your children the courts may decide who cares for your children if you die.

Are you comfortable with a stranger making this decision?

 

A Stranger Might Raise Your Children

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

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

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

 

Who Should Raise Your Children if You Die?

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

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

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

 

Your children’s guardian must be:

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

 

Your children’s guardian should be:

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

 

 

How to Appoint a Guardian For Your Children

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

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

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

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

 

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

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

 

What Happens to My Family If I Die?

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

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

 

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

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

 

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

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

 

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Parents are so intentional about so many aspects of their children's lives. Few will forgo putting together a will. But, what if you don't die? What if you are just incapacitated? Are you prepared for the unexpected? Are you leaving your children at risk? If someone else does raise them, do you know that they will be raised according to your wishes? Have you even thought through what your wishes are? All these questions and more will be covered in the process of completing a Family Protection Plan with Randi Johnson at Lilac City Law. Having our Family Protection Plan in place gives me an incredible sense of comfort and peace of mind. I highly recommend Randi and the staff at Lilac City Law. Hopefully you never need her services, but isn't it better to be prepared than to leave things to chance?
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Is a Military Will Enough Protection for my Family?   

Is your existing family protection plan enough to still protect your family?

 


One of the benefits of serving in the United States Military is that you have access to free legal help for things like: Powers of Attorney, Wills & Living Wills, Family care & Protection Plan, Survivor benefits, Estate taxes, Probate.

 However, there are some very important limitations to these supports that you should be aware of if you’re still serving and your family, wealth, or assets have grown.  Or, if you’ve discharged from military service.  


 

Limitations to Military Wills & Other Legal Benefits 

These great military benefits are best for less complicated situations.  Consider how you met with your military lawyer and setup your will, trust, or family care plan.  How many times did you meet with them?  Did they get to know your family’s names?  Did they personalize documents for you and make sure they would stand up to scrutiny in different jurisdictions?  If you’re like most service members, the answer to one or all of these questions is no.

 

“Typical” Situations

The typical situation is that service members push through legal en-masse either in preparation for deployment or event.  Or they go to legal as yet another step in a check-in or check-out process.  The pace that military lawyers are forced to work at times means that customization of family care plans, kids protection plans, estate plans, and others is very difficult.  Because of this many service members receive basic templates that offer very little customization for their unique family situation.   Not all service members have the same situations though, and that’s the issue we’re getting at.

 

The Most Common Objection

“I already had mine setup while in the military.”  This is the most common response we hear when talking about wills, trusts, kids protection plans, and similar support with service members and Veterans.  We wrote the article, Why you Need to Update your Estate Plan after these Life Events, to show why and how seven common life events change the effectiveness of your current family legal plans.

Whether we’re talking about a plan setup in the military or one created a couple of years ago when your life may have been less complex, if you haven’t updated it, it may not even apply to your life and assets anymore.

 

Three Things You Can Do Today

  1. If you put together any of these plans in the past and your life has changed in any of these ways, we want to help.  You can find out more about how we help families like yours to establish and update their plans here.
  2. You can create a free, fast, and easy Kids Protection Plan.  If you decide later to create a more in-depth plan we can also help you with that.
  3. Follow us on Facebook.  We share new and important information on family planning all the time.

 

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Why You Need to Update Your Estate Plan After These Life Events

Too many estate plans are created and then quickly forgotten, put on a shelf, and never looked at again. While we do recommend that you review and update your estate plan at least every three years, no matter what happens in your life, your plan must be updated immediately in the event of any of these seven life events.

Marriage

Getting married is the joining together of two lives. Your plan must address and account for your new legal status. Naming your spouse as a beneficiary on your insurance policies, updating your will and/or trust, and including him or her in the determination of how your financial and medical decisions will be made, if you cannot make them for yourself, are all critical steps to take after marriage.

Divorce

When you begin the process of getting divorced, you also must update your estate plan, unless you continue to want your future ex-spouse to receive your assets, and make financial and medical decisions for you, if you cannot.

Once your divorce is complete, you may have an entirely new asset profile to plan for now that you know what you own, what your ex-spouse owns and how you hold title to your assets, so it’s time to update your estate plan.

Births and adoptions

Providing for the care and custody of your child in the event of your death or incapacity is  paramount in your estate plan. That means naming guardians for your new child, both long and short-term, with a Kids Protection Plan® is a must. And, if you have not already done so, you’ll definitely want to consider setting up a trust for your child, to receive the assets you will be leaving behind.

Deaths

The death of a loved one die is never easy. And when they were a part of your estate plan, their death should prompt a review of your own plan sooner rather than later. You may need to name new beneficiaries, find a new person to hold Power of Attorney, update your health care directive, or identify new guardians for your children. This should not be put on the backburner.

Sickness

If you are in the midst of an illness, you may want to revisit who you have chosen to make medical decisions for you, in the event that you cannot, and how you want those decisions to be made.

Moving

When you move to a new State, have a lawyer review your estate plan to ensure your documents will still operate as you desire. . Some documents may need to be revised and you will certainly want to ensure any new real estate you acquire in your move is accounted for and properly transferred into your plan.

New Assets Acquired

More money means more problems, but only if you don’t plan well. Revisit your estate plan each time you change investment accounts, inherit any assets, acquire new property or other investments, or start or sell a business. Most plans fail because they do not take into account all of the assets owned by the person who died.

Update your Estate Plan

If you are anticipating or have recently experienced one of these major life events, contact us. It’s time to update your plan.

 

This article is a service of Randi Johnson, Personal Family Lawyer®. We don’t just draft documents, we ensure you make informed and empowered decisions about life and death, for yourself and the people you love.  That’s why we offer a Family Wealth Planning Session,™ during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.

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