Divorce Law Monitor

Considerations for Your Kids in Your Estate Planning

May 8, 2020


Planning for the wellbeing of your children may be at the forefront of your mind in the midst of the current COVID-19 pandemic. The decision you have been putting off may feel more urgent than ever. Namely, who would care for your minor children if you and a co-parent (if any) become unavailable? Now is a critical time to carefully consider your intentions and solidify them in writing with an estate planning attorney. But where should you start and what factors should you consider?

Consider naming separate individuals.

Legally, stand-ins for parents fall into two separate roles. A guardian of a minor is responsible for making any legal and medical decisions on behalf of the minor, and generally is the person who cares for and raises a child. A conservator is responsible for managing assets and financial affairs on behalf of a minor (or otherwise incapacitated person) Both are nominated in your Will (and a temporary guardian may be nominated in an Emergency Guardianship Proxy), and you may considering naming separate individuals for each of these roles.

It may prove easier to narrow down individuals who would be well-suited for each role separately based on their respective strengths and the other factors outlined below. Delegating these roles separately may also place less of a burden on each individual you name.  Finally, separating these roles can provide checks and balances between them, rather than putting all your proverbial eggs into one basket.

Think about back-ups.

As you plan for the possibility that you could become unavailable to care for your children, consider too that your first choice for guardian and/or conservator could become unavailable as well. If you are fortunate enough to have multiple people in your life whom you would feel comfortable entrusting with your children, be sure to explicitly name them as successors in your legal documents.

It’s also worth considering circumstances under which you may not want your first choice candidate(s) to serve in the role you’ve nominated them for. For example, if you are naming your brother and his wife as guardians for your minor children, would you want your sister-in-law serving as sole guardian in the event of your brother’s death, or would you prefer that another individual or couple step into the role? Be explicit about any pertinent contingencies in your documents.

Get in sync with your co-parent.

If you presently share custody with another person or persons, it’s important that you get on the same page. In the event that all custodians are unavailable, conflicting appointments of a guardian and/or conservator will require intervention of and resolution by the courts.

Carefully consider your choice of guardian.

Selecting the right person to name as guardian of your children is no easy task. After all, nobody can ever fill your shoes as parent and raise your children exactly as you would.  Ideally, you have someone in your life who shares your values, and a similar parenting style and philosophy. Your ideal candidate will be financially stable with no major medical concerns. Geographic location may be an important factor as well, particularly with older children for whom your choice of guardian could either exacerbate this major life disruption or alternatively provide some much-needed continuity.

Don’t forget to consider whether your ideal candidate is even willing to accept the responsibility of serving as guardian. Does he or she already have or want a family, or are they childless by choice?  Age and life expectancy should factor in as well. For example, while you may trust your own parents more than anyone else to raise your children, they are more likely to face physical limitations, medical issues, and possible mental deterioration over time, making them less than ideal candidates. It’s important to have a candid discussion with the person or persons you are considering naming as your child’s guardian to ensure a good fit with someone who will not find themselves with an unwanted burden.

Consult an estate planner.

Your estate planning attorney will prepare or update a Will and/or Emergency Guardianship Proxy, if appropriate, that accurately reflects your intentions, is legally enforceable, and works in conjunction with the rest of your estate plan. If you are struggling in your decision making, an estate planner may also help you weigh your options.

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