Making sure the kids are all right: why it’s important to choose a guardian for your minor children today

As a new mom, I couldn’t stop myself from worrying about the same fear that haunts every parent of young children: What would happen to my daughter if I weren’t here to take care of her?  

Even though I knew that the chances of something bad happening to me or my husband were slim, the truth is that we live in an unpredictable world. And despite our best efforts, there’s nothing we can do to ensure that we’re always going to be there to care for our children.  It’s a deeply unsettling thought that no one wants to dwell on for long — for obvious reasons. The only thing you can do is prepare so that if the worst-case scenario does occur, you have a system in place to prevent your kids from being put in temporary foster care — or, in the long term, assigned guardians you did not choose by a judge who doesn’t know you or your family situation.  

So how do you plan for this worst-case scenario?  

The best way is to prepare a family trust with guardianship provisions that specify not only who you would want to take care of your children in the event of your incapacity or death, but also how your assets are managed and used to care for your children.

You may be wondering, why do I need a full trust?  Can’t I just draft a simple will and name guardians in there? Sure, but there are a few serious problems with relying on a will that must be considered. The first is that a will would not spare your family from going through probate — which is a long, expensive and public court proceeding. A trust allows your estate to be privately administered without having to involve a court, which is a wonderful gift you can provide to your grieving loved ones.

Next, a will won’t allow you to provide for the ongoing financial care of your children.  If you leave assets to your minor children, they will not legally be able to control those assets until they are 18 and the court will place them into a blocked account. Their appointed guardian will then have to report to the court yearly to show how the money is being used. Once a child turns 18, he or she will be entitled to receive the money outright – which is often problematic, because your son or daughter may not be mature enough to use the money responsibly. This also puts the money at risk of creditors or unscrupulous persons who may take advantage of your child.

With a trust, you can designate whom you want to care for your children — temporarily in case of an emergency, so that your children are not placed in foster care, as well as long term in the event of your death. You can also direct who will control your assets and how those assets should be used to care for your children until they reach adulthood — and even beyond — by putting conditions on how the money should be disbursed and when. This provides the ultimate protection for your children from future creditors, and even themselves.

How do I pick a guardian?

This is a deeply personal decision that you (and your spouse or partner, if you have one) will have to put a lot of thought into, as only you know your family and what’s important to you. Here are some issues to consider that may guide your decision:

• There is no one who can replace you as your child’s parent.  But who in your life will love your children and care for them nearly as much as you do?  
• Does the prospective guardian have a genuine concern for your child's welfare?
• Does the prospective guardian share your values, religious or political beliefs?  How important is this to you?
• Do you know what the prospective guardian’s discipline style will be? How will this mesh with your own?
• Is the prospective guardian physically and emotionally able to handle the job?
• Does the prospective guardian have the time and willingness to care for your children?  You should discuss your wishes with a prospective guardian in advance to make sure that they are willing to become a guardian.
• Does the prospective guardian have kids close in age to your children? How might this affect your children or the burden placed on the prospective guardian?
•  Where is the prospective guardian located? Would your children have to move?
• When naming a couple to serve as guardians, think about whether you would want one to continue serving alone if something happened to the other.
• Choose back-up guardians in case your proposed guardians are unable or unwilling to serve for any reason.
• Also, if your proposed guardians do not live locally, choose temporary guardians who can take your children so that they do not end up in temporary foster care if something happens to you.
• Consider choosing a trustee to manage the finances of the trust — someone other than your proposed guardians.  This provides additional oversight for how your assets are used to care for your children.
• Consider whether there are certain people who you want to exclude from ever serving as a guardian for whatever reason. Is there someone who might fight for guardianship of your children whom you do not want to take care of them?  If so, it’s important to identify them and explain why they are unfit to care for your children.

Another important issue to consider is whether you have enough assets, such as life insurance, to provide for your children. Do not leave it to the guardian to assume financial responsibility for your children.  

I understand that these decisions may be uncomfortable to make — the whole process seems overwhelming. It’s the main reason why many people put off estate planning, even when they know how important it is. That’s why I’m here to guide you through the process and make it as simple as possible. I will meet with you at your home, or wherever is most convenient, to design an estate plan that meets your particular needs.  The whole process will only take a few hours of your time and when it’s over, you can rest comfortably knowing that you’ve done everything you can to protect your family.  So let's chat to discuss how you can get started today.