The Paperwork of Loving Your Kids

If something happens to you, what would happen to your children? Who would take care of them? Will they be provided for? Most parents worry about these questions. But surprisingly few actually take steps to plan for their children’s future. While it is difficult to think about your children’s future without you in it, doing so is responsible, and will give you great peace of mind. Arguably, planning for your kids' futures in your absence is the most loving thing you can do. Here’s what you need to know.

What is guardianship?

Who takes care of your children when you’re not there? Without an estate plan, a probate court will choose (1) who has physical custody over your kids, and (2) who will manage their financial affairs. This may be the same person, but, somebody who is wonderful at taking physical care of a child may not be the best at managing money, and vice-versa. An estate plan allows you to choose ahead of time who will act as your children’s guardian(s).

What happens if you don’t make provisions for a guardian?

If one parent dies, the surviving parent automatically remains the child’s legal guardian. If no surviving parent exists, or if both parents die at the same time, a guardian is appointed by the court. The court is obligated to make the appointment “in the best interests of the child” and will appoint whomever it considers to be the most appropriate person (usually the nearest blood relative). Of course, this may not be your ideal choice, and, this may lead to a heart-breaking court challenge if somebody considers the court’s choice unsuitable. For these reasons, establishing an estate plan that includes guardianship provisions is always your best option.

How should you choose a guardian?

Choosing a guardian beforehand allows the court to appoint a guardian according to your wishes. Don’t let the difficulty of choosing a guardian prevent you from choosing somebody. You can always change your choice in the future (in our experience, many end up sticking with their first choice, but others do change them later). Take into account the age, health and location of your choices, and remember that these factors will most likely change in the future. It’s a good idea to name alternates in the event your first choice is no longer available. If you name a married couple, then the nomination must take into account contingencies such as divorce or death. An older, adult child can be named the guardian of your younger children. The most important thing to remember is that you get to choose the friend/relative that you - and not the court - believes is best for your child.

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Parents should engage an estate plan that ensures that their children are cared for emotionally and financially. As always, if you have any questions regarding guardianship or any other estate planning needs, we are happy to help.

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