What Parents of Minor Children Need to Know about Estate Planning -- An Estate Plan is Needed to Nominate a Caregiver ("Guardian") for Your Children

Whenever I tell someone that I am an estate planning lawyer, I often get the response -- “Okay. What is that, exactly?” Estate planning, “neatly” summarized, prepares your family for the tragic possibility of your death or incapacitation. The process of estate planning will:

· Organize your financial information (assets and liabilities);
· Designate a caregiver for your children;
· Establish how your children’s future will be funded (i.e., when your life insurance and other assets will be distributed to them – after they graduate from college, for example);
· Create a vehicle which indicates what assets will go to whom;
· Help you to ensure that more of your assets go to your beneficiaries, rather than to paying taxes;
· Ensure your assets are properly titled and that your contractual beneficiary designations are properly worded;
· Designate persons of your choice who will handle your finances and health care decisions if you are unable to;
· Walk you through difficult choices about what medical care you would choose in the event of terminal illness or a diagnosis such as “permanent vegetative state” and,
· If you wish, minimize the probate process for your loved ones after your death.

By far the most important planning decision that an estate plan will allow parents of minor children to make is the designation of a caregiver, or “guardian,” who will raise your children if the unimaginable should happen to both parents when one or more of the children are under the age of 18.

When one spouse passes away “intestate,” or without an estate plan/will, the other parent assumes the role of sole caregiver of the couple’s children. But, when a couple dies “intestate,” or without an estate plan/will, a court must step in to appoint a guardian on behalf of the children. The guardian will take on the “substitute” parent role and will handle everything from the day-to-day care for the children to critical decisions regarding medical care, education, religion and other life-defining choices. While a court often will appoint a close relative of the children, the court has the discretion, meaning the right, to select anyone who steps forward and requests to be appointed. Although a court will consider numerous factors in making the decision, including the children’s wishes, if they are old enough to make those wishes known, it is the particular judge that the case is assigned to who makes the final decision. Not only does the appointment process result in legal fees which may reduce your children’s inheritance, but more importantly, the process may result in the appointment of a person whom you would never choose to raise your children. Sometimes, families find themselves in lengthy, drawn out court battles over who will raise the children, causing serious rifts in relationships and resentment during an already tumultuous time for the children.

Most often when providing advice on this topic, I hear parents say: “We really can’t think of anyone who would raise or love our children as we would.” Perhaps the best thing to do is to accept that there is no one who could love your children as you do, or who would make choices for your children as you would, i.e., that there is no clone replacement for you. Instead, I encourage parents to look to their families and close friends for a person(s) near their age whom they believe would be the best runner-up -- who would provide a stable, nurturing environment for their children, and then for the second best runner-up, in the event that the first choice for any reason cannot serve. Consider who has a good relationship with your child/children already. Examine how many children the person/couple already has, and their lifestyle. Does the person/couple live life/raise children with the same morals/religious values? Does the person/couple have children such that raising your children in addition would cause hardship on everyone? If the person/couple does not have children, does the person/couple want children? Is the person/couple in a healthy relationship? Does the person/couple value education as you do? Is the person/couple in good health, mental and physical? What is the person’s/couple’s approach to financial matters? If your assets fall short in rearing your children, would the appointed guardian be able to financially support the child/children? Does the person/couple have a good network of support? Does the person/couple have the time and energy to devote to your children? Is the desired guardian(s) located relatively close to where the children are being raised?

Many times couples will wish to nominate their own parents, but consideration must be given to the age of the grandparents and to their health status, and to whether or not raising a teenager at ages 60 or 70 is the best option for either. Also, you will often choose the same guardian for all of your children, but in some instances, such as stepsiblings or children who are far apart in age, different guardians may be appropriate. Further, clients often also wish to elect a sister and brother-in-law, or vice versa. The recommended procedure is to name just the sister, or just the brother-in-law, in order to avoid a dispute regarding which should have custody in the event your sister and brother-in-law divorce, but this can also complicate the decision making process for the guardian. I suggest that once you feel you’ve chosen a couple who you believe would lovingly raise your children, that you explain that you are “exploring the possibilities,” and ask them how they would feel about being the guardian of your children, what their feelings are about divorce or termination of their relationship, and how they would like to handle the medical and decisional aspects of guardianship (whether one would prefer to be the decision maker or both would like to be named as guardians). If you have selected a guardian(s) and an alternate, and one or both are persons outside of your family, I suggest that you talk with your family to avoid a surprise, which could result in a challenge to the guardianship proceeding and a lengthy court battle. In every circumstance, your estate plan should nominate someone other than the guardian as the trustee, or keeper, of your children’s inheritance. The separate appointment is not intended to be a statement on the guardian’s trustworthiness or honesty, but as a means by which to avoid any impropriety to outsiders.

While your chosen guardian(s) will likely know you well, I often suggest that couples draft a letter about their hopes and expectations for their children and that they keep this letter with their estate plans/wills, which will serve as a guide for the guardian(s), and as a keepsake for your children if they lost you.