Most of us have a “plan B” of sorts when it comes to our little ones. We’ve likely discussed who we would want to raise our children should the untimely death of both parents occur. It’s not the most pleasant of conversations, but one that’s absolutely crucial. Once it’s past the quiet talk between mom and dad, the legalities enter into the mix and while it seems as though it should be rather straightforward, there are those mandatory dynamics that play into any law. Because many of our clients are sometimes confused by the logistics of nominating a guardian, we thought this would be a good time to explore what it is and what it’s not.
Once a client understands what’s involved, they’re in a better position of making solid choices for the future of their children should they not be around to watch them grow into adults. It also opens the door for solid planning while also serving as an incentive to get their estate plans and wills up to date.
Clients sometimes get a bit sidetracked as nominating someone to fill the role of guardian is not simply “giving your kids to someone.” With our material possessions, we can simply name the person whom we’d like to see enjoy that possession following our death. With our little ones, it’s far more complicated and for good reason. Nominating a guardian includes legal channels. It’s not that courts necessarily want to second guess your chosen guardian; rather, there are so many egos and potential hurt feelings that problems can occur as a result. The entire, “He said I should raise the kids” and “Well, she said I should be the one” argument makes its way into courtrooms across this country every day. It’s not “inherited” property or property at all that’s at stake: it’s your child, the one you live and breathe for and the one you want to see succeed in every level.
Nomination of Guardian
A nomination of guardianship in your will provides details and makes it clear who is desired to serve as guardian for your minor children. Courts naturally give the majority of consideration into those named guardians; however, it has a responsibility to consider every other possible dynamic. For instance, you might have named a guardian when your daughter was 8 and you might not have given any consideration in recent years as to who you named. What if if she’s now in the final months of her senior year in high school and your named guardian now lives in Brazil? Would it be beneficial for her to remain in her high school, perhaps living with her aunt in the same hometown until she graduates? Those are the types of problems courts run into.
People, Circumstances Change
Also, your named guardian all those years ago might have been ideal, but perhaps that guardian has gone through a divorce and is now facing legal hurdles of his own? Surely those can’t be conducive to a peaceful home for a child or even an elderly parent whom you’ve taken care of in recent years. It could be the potential guardian lost custody of his or her own children. The courts are going to want to explore that in their efforts of due diligence.
Your wishes are always first and foremost in the eyes of the court; however, that same court shares the same concerns as any loving parent: what’s best for the minor. But people change. Life has a way of kicking us hard and what’s best today might not be the same ideal solution tomorrow.
So what’s your best bet? Speak to an estate planning lawyer. Ensure your will is up to date, your financial bases are covered for your children should the unthinkable happen (and by the way – the one who raises your children doesn’t necessarily mean it’s the same one who oversees the finances; in fact, it may be beneficial to have more than one person or party involved). If it’s been a few years, make an appointment to go over those important issues. Your estate plan is further strengthened by having a strong financial plan – including insurance and investments – that coordinate seamlessly and your attorney can ensure both are complementary and sufficient.