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How to Keep your Family out of Probate Court in Minnesota

May 17, 2019

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Guide to Naming Guardians for Parents of Minor Children

What many parents don’t realize is that if something happens to them preventing them from caring for their children, in most cases, children are not placed with a loved one to comfort them in a familiar place.

The problem is that although many parents express verbally their intentions, they never give the intended guardian the legal authority to act.   This often results in children being placed in protective custody with law enforcement in temporary situations (should you become incapacitated).  Or, in the event of the parents’ death, placement in a foster home until the court designates a permanent guardian (often taking up to 18 months).

As a 15-year veteran of litigation, the thought of children being placed in the very unpredictable court system is unsettling.  That’s why I make keeping families out of court and out of conflict, the focus of my law practice.  I’ve designed this worksheet to help you understand some of the mistakes I see parents make when naming guardians and to help you avoid them.

STEP 1. When appointing guardians for your children, consider all possible parties including:  Parents, Siblings, Friends, Godparents, Neighbors, and Former Roommates, Cousins or anyone.  Remember most anyone is better than Foster Care/Protective Custody.

STEP 2. Consider common mistakes parents and their lawyers make when appointing guardians that you can avoid:

  1. Not considering priorities over people (i.e. Values/similar parenting styles)

 

  1. Naming couples without considering what if one dies or they split up

 

  1. Not naming alternative guardians (Name up to 3)

 

  1. Choosing by finances rather than values (It is your responsibility to maintain life insurance to support your children, not the responsibility of the guardian)

  2. Not using a trust to handle assets (causing an outright payment at age 18)

 

  1. Not excluding specifically undesirable people

 

  1. Failing to name short term guardians

 

  1. Failing to notify guardians you’ve named

 

  1. Not using legal docs (Your guardians need legal authority to act)

 

  1. Failing to leave specific instructions to caregivers

 

STEP 3:  List your most important parenting priorities (parents should complete separately then compare lists).  Consider:  relationship child has with possible guardian, the guardian’s location, the guardian’s age, philosophies, religion, parenting style, if similarly, aged kids, importance of education, travel and extra-curriculars.

 

PARENT 1:

  1. _______________________________________________________________

 

  1. _______________________________________________________________

 

  1. _______________________________________________________________

 

PARENT 2:

  1. _______________________________________________________________

 

  1. _______________________________________________________________

 

  1. _______________________________________________________________

 

STEP 4:  Rank the parents lists of priorities from the previous question.

 

              PARENT 1:

 

  1. (Most important)___________________________________________

 

  1. (Somewhat less important)___________________________________________________

 

  1. (Not as important)__________________________________________

 

PARENT 2:

 

  1. (Most important)___________________________________________