We can all agree that raising a child is not simple or easy in any way. Parenting comes with many tough decisions of varying degrees. One of the most challenging decisions as a parent is choosing guardians should care for and raise your minor child if you cannot.
Often parents designate a caregiver in their Last Will and Testament, which asks that a judge appoint the nominee as a legal guardian of the child. When choosing an appropriate guardian, we suggest considering the following:
- Two Guardians or One – When choosing a guardian for your child, you are actually determining two guardians: the guardian of person and guardian of property. Your nominee can be both the guardian of person and property or there can be two separate guardians. A guardian of the person is responsible for managing the day-to-day tasks a typical parent completes such as the child’s medical, educational, and residential decisions; your child will likely live with this person. The guardian of the property is responsible for managing the child’s property and money. For example, if your child receives inheritance from a probate or social security death benefits from your passing. The guardian of property will pay or reimburse the guardian of person for expenses unique to your child such as orthodontics, tutoring, or necessary medical procedures. It is often helpful to have the same person be both the guardian of person and property; however, some parents choose a person from each parent’s family to ensure the families keep working together and keep both families involved in the child’s life.
- The less disruptive, the better- The first consideration in nominating a guardian, is determining what scenario and who is the least disruptive option for a guardian. Your death will be a massive disruption to your child so the greatest post-mortem gift to provide your child is to minimize the disruption and transition that occurs immediately after you are gone. When choosing a guardian, consider the following: (1) how far your child would need to relocate to live with the guardian, (2) what school they will attend, (3) do you want your child to remain in your home and will the guardian be willing to move (4) does your guardian have children whose lives will also be impacted should your guardian move. Determining and writing down your child’s needs and your desires to provide the least disruptive option will weigh the considerations which are important to you and disqualify potential guardians who do not align with your goals and needs.
- Age of the Child and Guardian- Different ages require different approaches to parenting. For example, a teenager may be more independent and have a preference where they would want to live if something happens to you. Having your child join in the conversation may bring comfort to them, knowing that they have a say in the matter and will be taken care of by a trusted family member or friend. A toddler may require a more hands-on guardian who will likely be able to care for at least 10 to 15 more years. Will this potential guardian be able to keep up with the high demands of homework, carpools, and kids’ activities of younger children? As children grow, so do their social networks and obligations. Having a guardian who will keep pace with these demands is essential to think about.
- Talk it out and write it down- The best practice when it comes to choosing a guardian for your minor child is to plan ahead and years down the road. Have those tough conversations now and have those conversations with your potential guardians. Will your guardian be willing and able to step in? How old will your guardians be in 5 years, 10 years, or even 15 years? Do the guardians understand the potential responsibility. Do not make your efforts futile by choosing a guardian who does not want to or cannot take over. Once you have a guardian(s) selected and approved, write it down. Once you have their approval, be sure to reduce it to writing. Contact your estate planning attorney to update or draft your Last Will and Testament to reflect your newly chosen guardian.
- What resources are available- There will be a cost associated with raising your child which may fall on your guardian of person if social security death benefits are insufficient to cover costs. You can provide for any inheritance, including life insurance, retirement accounts, and real estate, be made available to cover any deficiency between benefits received and the expenses of your child. You will want to consider if your child and the guardian remain in your residence, will there be resources available to continue paying for the mortgage or rent? Should the house be paid in full first to free up resources for other items like groceries, clothes, and extracurricular activities? With a properly drafted estate plan, you can plan ahead with the resources you intend to have to maximize the funds available for your child and minimize any financial burden on your guardian of person.
- Consider a backup Guardian- There is always the chance that the guardian cannot fulfill their obligations as your child’s guardian. In this case, you should consider selecting a backup individual to step in if necessary. This guarantees that even if your initial plan falls apart, your child will still be taken care of by a responsible party of your choosing.
Your death will undoubtedly create an emotional hardship on your child, particularly if your child is a minor. Our time with our children is not promised but we can promise that we have properly planned for a “Plan B” if our “Plan A” is disrupted. At McCart & Tesmer, we are ready, willing, and able to help you make your “Plan B” to give you assurance and comfort knowing your child will always be well-cared for.
