Guardian of Your Galaxy
One of the most important aspects of estate planning is naming a guardian for your minor children. Obviously, this is extremely difficult to think about and of course nobody is better equipped to raise your children than you are, but it is vital to have a contingency plan in place should tragedy strike. I imagine most of you reading this would not want your children to become wards of the state or have the state choose a guardian for your children, which is what will happen if you fail to name a guardian. That’s why naming a guardian is crucial to ensure your children’s safety and well-being if you are no longer around. In this month’s blog I’ll discuss the importance of naming a guardian, some things to think about when choosing a proper guardian, the responsibilities of a guardian and what steps to take to incorporate a guardian into your estate plan.
Have you ever sat down and thought about who would take care of your children should something happen to you and your partner? Probably not, because it’s a horrible thing to think about. But, that doesn’t mean you should keep avoiding having this conversation. I hear all the time from client’s that the reason they put off creating their estate plan is because they don’t want to even think about the idea of a guardian being necessary. It's just way too difficult to think about the unlikely scenario of dying while your kids are young and still need to be cared for. No doubt that this can be gut wrenching, but I promise having a plan in place will actually reduce your anxiety level because you’ll feel secure in naming a proper guardian and knowing that the guardian you named will have the best interests of your children at heart. I would encourage you to take some time and think about who you would potentially name as a guardian. Keep in mind that you can always change your guardian nomination in your will at any time. No decision you make here is etched in stone. But, you absolutely need to have someone named.
So, what is a guardian responsible for? Well, “guardian” in this context means “guardian of the person.” A guardian can also be appointed to manage your child’s money up until they turn 18 years old, which is called “guardian of the estate.” However for our purposes in this blog, I am going to focus on “guardian of the person.” Perhaps in a subsequent blog post I’ll discuss how a guardian should manage your children’s money. In any event, basically a guardian has the legal authority and responsibility to care for a child, just like a parent does. A guardian’s job is to provide food, shelter, clothing, medical care, education, etc., while ensuring the child’s safety, comfort and security. This also means that a guardian is legally responsible for any actions by the children under their control, which could entail property damage or injury to another person. A guardian also has a lot of influence over the child, just like a parent does. A guardian would be responsible for the activities the child engages in, the food they eat, the clothes they wear, etc. This also means a guardian has control over watch shows or movies the children watch, any religious affiliations and big decisions like whether or not to go to college, what career to engage in and even approval of a spouse. As you can see, being a guardian is a huge responsibility. That’s why when considering who to select as a guardian, you may want to consider someone whose values are aligned with your own. However, as far as financial responsibility is concerned, a guardian is not legally responsible for their ward’s financial support. A guardian can apply for public assistance support if necessary, however, hopefully you have been planning for your child’s financial future ahead of time by setting up a trust or custodial account to pay for your child's upbringing and support. This will alleviate some of the stress/concern of the guardian in raising your child.
Now, after you name a guardian in your will, keep in mind that it has to be approved by a judge. Judges will give priority to the individuals named in your will, however, the court needs to ensure that your named guardian is responsible and will do a fine job raising your child. In California, this means a court order investigation of the prospective guardian’s background, including a home visit. A judge is going to evaluate the guardian’s concern and interest in the welfare of your child. A court ordered investigation will look into the following:
The love and affection between the child and the proposed guardian
The capacity of the proposed guardian to provide love and a stable home for the child
The mental and physical health of the proposed guardian
The guardian’s moral fitness, and
The child’s preference
A guardian must also file status reports with the court annually, providing an update on the child’s well-being. California courts also require prior approval for certain actions, i.e. moving a child out of state. These factors should all be considered when choosing a guardian.
So, now that we discussed the responsibilities of a guardian, who should you choose to act as a guardian of your children? That’s a great question and one that’s not easy to answer. I would recommend naming up to three people to act as a guardian in successive order, that way if your first nomination fails to act or isn’t around, you have backups in place. Think about who would be the best position to give your children a loving home, have values that align with your own, and will be prudent about getting the children to school, to appointments or any other activities your children are involved in. The first step to take is to make a list of what qualities or attributes are important to you in choosing a guardian. This could involve their financial situation, religious affiliation, education values, location etc. I would organize this list in terms of importance to you, perhaps by ranking them on a scale of 1-10 or something like that. Keep in mind, however, it is unlikely you’re going to find a person who perfectly fulfills all of your guardian qualities wishlist. So, make sure you know which attributes you are willing to compromise on and which ones are a dealbreaker. Have this discussion with your partner and make sure you are both on the same page when nominating a guardian. Also, for same-sex couples, the best strategy is to ensure that you are both the legal parents of your children. If you have a child prior to the start of your relationship, then I would recommend adopting the child after you get married. This ensures that if one of you passed away, the surviving spouse will remain the legal parent of the child.
Finally, I want to take a moment to discuss some concerns that pop up when I discuss guardianship with my clients. Oftentimes, people want to name their parents as guardians. Of course, grandma and grandpa would be giddy at the idea that would feel comfortable naming them. While this will work in the interim, I would stray away from naming someone much older than you. Odds are your parents are not going to survive your children and if that happens, the state will appoint a guardian on their own if you don’t have backup named. However, if you’re really struggling with choosing a guardian, then go ahead and name the grandparents for now just to get something down in your will. You can always reevaluate your selection a few years down the line. Next, what happens if your family doesn’t approve of your guardian election? Or what if your children may not like your choice? In these situations I would suggest writing a letter to your family and explain why you chose the guardian that you did. Ask your family to respect your wishes and explain why this person or couple was the best option. Keep this letter sealed and with your estate plan, only to be read upon your death. When it comes to your children’s concerns, the solution is simple: talk to them about it. Find out what concerns they may have and let them know the reasons you chose a particular individual to care for them after you’re gone. This can be particularly effective when dealing with teenagers. Also, keep in mind that children 14 years of age or older do have a legal right to ask the court to appoint a different guardian. This only reiterates the importance of discussing these issues with your children.
So, I hope this was helpful and gave you an idea as to what to consider when naming a guardian for your children. This is certainly not everything that factors into these decisions, but for any specific concerns you have, feel free to reach out and let’s discuss how to get your estate plan set up. Book an appointment today!
