Let me guess: You’re like so many of my clients who are responsible, caring parents. Of course this means that you’ve already designated a guardian for your children in the event something should happen to you.
Verbalizing your intention to name someone as a guardian of your children should something happen to you is a good start. However, it’s not enough.
Letting the party you’ve determined you’d want to raise your children know that your intentions are for them to step into the role of guardian if something happens to you is important. Expressing your intentions regarding guardians in a will is even better. It will guide the probate court and advise them of your intentions should something happen to you. But, even expressing your intentions in a will does not guarantee your intentions are realized.
In order to protect minor children, the following 3 things must occur:
A trust must be established
Permanent guardians must be named in the trust
Temporary guardians must be named in the trust
You need to establish a Trust-based Estate Plan
As discussed in earlier chapters, where there is a will, there is a probate court action.
Where there is a probate court action there is a judge who makes the final determination (sometimes despite the intentions you set out in your will).
Judges take a lot of factors into consideration when determining who will be ordered guardians of minor children.
I have seen and/or heard of various factors in different jurisdictions that judges consider when choosing a guardian for minor children. Usually state law sets forth factors for selecting who should be guardian.
However, courts often have a lot of discretion and may consider factors in addition to those provided by law. Credit score, relation, employment, age, geographic location, religious beliefs, income, criminal history, marital status and whether the candidate has their own children can all play a role in determining who is appointed guardian of a minor child.
I have a colleague who had a reality check moment when she realized that if something happened to her, the judge would likely appoint the one person she least desired to raise her children. This person was her sister-in-law. My colleague Morgan’s sister-in-law had been married to a physician (Morgan’s brother) for nearly 20 years. They were in their mid forties. Her sister-in-law was a stay-at-home-mother with two of her own children. She volunteered and was on the PTA Her children were cousins to Morgan’s kids and they spent most holidays together as families.
On paper, Morgan was the perfect guardian, the mostly likely person to step-up as guardian and the most likely candidate to be appointed by a judge as guardian.
Despite her sister-in-law’s spotless resume’, Morgan knew more about her than any judge would ever learn. Morgan’s brother and sister-in-law had experienced discourse in the marriage for more than a decade. Their relationship had endured several affairs.
In Morgan’s eyes, her sister-in-law was not much more than an opportunist looking for a payday. More importantly, Morgan felt her brother and sister-in-law were not present in their children’s lives. They didn’t have the same parenting values and their oldest son was having trouble with skipping school and drug abuse.
Morgan realized that she had to do something. She created a trust and specifically, yet confidentially disclaimed her brother and sister-in-law as potential guardians of her children. By doing this, Morgan ensured that her children would never be raised by her brother and sister-in-law temporarily or permanently. She could ensure this because if her brother and sister-in-law challenged the appointment of the guardian that Morgan named in her trust, the trust specifically disclaims them as undesirable guardians. Upon learning of the trust, her brother and sister-in-law would become embarrassed and be exposed of infidelity, inattentive parenting, a troubled son and lifestyle concerns.
Now that you’ve discovered how important it is for parents of minor children to establish a trust, we’ll discuss why both permanent and temporary guardians must be named in the trust.
Nomination of Guardians
The idea of something happening to you as a parent is difficult to imagine. Who would care for your children permanently or even temporarily if you were hospitalized? This article will provide guidance for putting guardians in place.
Permanent guardians are those who would take custody of and care for your children in the event that you die. Often times, I hear clients ask if the designated permanent guardian needs to be a relative. The answer is no. You can name anyone who you believe would parent your children as closely as you would yourself.
Considerations when choosing a guardian should include: values, geographic location, ideals, religious or spiritual preferences, charitable tendencies and anything else that is important to you.
It's not uncommon for parents to select guardians based on a party’s financial situation. That is a big mistake. Finances should not be any sort of consideration in determining who will raise one's children. Rather, it is the obligation of the parent to make sure that the child is financially provided for in the event that they pass. Life insurance is incredibly inexpensive for young parents. Every responsible parent should obtain a life insurance policy to ensure that if something happens to them the permanent guardian of their children would be able to financially provide for their children through life insurance proceeds.
When considering guardians, think outside the box. Many of my clients like to name their parents or siblings. That is fine. However, sometimes a neighbor with similarly aged children, a cousin, a college roommate or a friend is a better candidate for parenting your children than a relative. Also, parents should consider alternative guardians. It makes sense to name up to three parties as potential guardians.
In my book "The Ultimate Guide to Protecting your Loved Ones from Uncle Sam, Opportunists & Probate", I've put together a module entitled “A Guide to Parents for Naming Guardians of Minor Children”. This module gets you really thinking about things you probably had not considered when contemplating guardians. Each parent should complete the module separately and then compare answers.
Many Estate Planning attorneys make the mistake of failing to go beyond naming permanent guardians for minors. To ensure children are best protected, Estate Planning attorneys should also name temporary guardians for minor children.
Temporary guardians are those people who are named to care for your children short-term in the event that you cannot care for them yourself. For example, if parents are in a car accident and they remain hospitalized, they are not able to care for their children. Should this scenario occur, parents will have named short-term guardians to avoid children going into protective custody or foster care. Law-enforcement does not have the legal authority to hand over a child to someone who is not a legal guardian.
Therefore, procedures need to be put into place through Estate Planning to ensure that children are cared for by familiar faces. Proper Estate Planning will name temporary guardians and give them the legal authority to act.
When naming temporary guardians, parents should choose people who are in close geographical proximity. It makes no sense to call on someone who is across the country from your child when your child needs immediate care. Consider next-door neighbors or family and friends who are within an hour driving time from your home.
Once chosen, permanent and temporary guardians need to be made part of a trust. It is also a good idea for parents to carry trust identification cards. Trust identification cards are carried in a parent’s wallet. In the event of an accident, law-enforcement and or physicians will be able identify that you are the parent of minor children. Upon learning such information, the trust identification card will provide them with contact information so your family and friends are put on notice that you've been in an accident and they can step up to care for your children. Here is an example of the trust identification cards our office offers:
Emergency ID CARD
I have a minor child/ren waiting for me. In case I am
unable to communicate, please contact the following people in the order named as they have legal authority to act regarding the care of my child/ren:
1. John Smith (651)555-1212
2. Jane Nanny (651) 249-4111
3. Kevin Caretaker (612) 123-1234
If you cannot reach these people, turn this over and contact my Attorney’s office immediately.
TRUST ID CARD
Do you carry an Emergency ID Card like this
In your wallet?
If not and you have minor children, you should.
Metropolitan Law Group PA
Finally, when caring for children, it is important to put an emergency plan in place. Our office offers an emergency plan for parents to leave with nannies, babysitters and other caretakers. The Caretaker’s Emergency Plan provides contact numbers for doctors, dentists, neighbors and nearby relatives. It lists allergies and/or medications of the children. It outlines an evacuation plan in the event of a fire or storm. Caretaker's Emergency Plans can be as detailed and customized as a client desires.
Now you understand the importance of establishing a trust to nominate temporary and permanent guardians for your children and that the chosen guardians must be granted the legal authority to act.
Contact Metropolitan Law Group to schedule your Family Wealth Protection Strategy Session to designate your children’s guardians.
Lisa Haster is an Estate Planning attorney in Minneapolis, Minnesota. She is the author of “The Ultimate Guide to Protecting Your Loved Ones from Uncle Sam, Opportunists & Probate”, has been a contributing author to several legal publications and is the founder of JDpreneur Marketing group for lawyers. To schedule a Family Wealth Planning Strategy Session with Lisa, go to www.LegalTransparency.com and click on Schedule.