I hear it so often: “I know I should do an estate plan, but I just can’t bear to think about what would happen to my children if I died. There are no good options. It’s just too difficult.”
With two children of my own, I understand how scary it is to contemplate. By the same token, without a plan in place, you could have a situation where no one can decide who will care for your children, or where everyone wants to be guardian.
In the absence of any written wishes, the matter falls into the hands of a probate judge. Imagine someone who has legal authority, yet no knowledge of you, your family or your children. In essence, a stranger is making the most important decision without your input.
As parents, our job is to advocate for our children. And through an estate plan, you can continue that important job, even if the “worst” should occur.
With that said, many of my clients in the process of estate planning still have trouble designating a guardian. No option seems “right.” This is what I share with them. First, the odds are very much in your favor that you will live to see your children into adulthood. In essence, designating guardianship is like having fire insurance: you aren’t likely to use it, but having it brings tremendous piece of mind. (And keep in mind that you can’t get fire insurance after a fire occurs. You need the insurance beforehand.)
Second, guardianships don’t have to be forever. In fact, they are relatively easy to change. I have a client who chose a family member on the East Coast when her children were little and comparatively easy to relocate. Now that her children are teens and have strong ties to their schools and friends, she and her husband have designated a guardian closer to home. Accordingly, when asking someone if they will act as a guardian, you can mention up front that this is something you plan to revisit over time. People who care about you and your children will understand that planning for younger children has different considerations than planning for teens.
I also tell my clients that, when nominating guardians, there is a guardian of the estate and guardian of the person. A guardian of the estate is someone who manages the assets for the child (a trustee of the child’s trust plays the same role). A guardian of the person is the person who will physically take care of the children. These two roles can be performed by the same person or two different people. The guardian of the person may be very loving and caring, but not very good with money, and vice-versa. Or you could name the same person to perform both roles. It depends on the person and your goals.
Additionally, if your guardians are out of state or live very far away, you should name temporary guardians to watch your children until the permanent guardians can arrive. This is a very important step that parents overlook sometimes.
Ultimately, even with a designated guardian, the decision as to the right guardian is for the probate judge to decide. Rest assured, the judge is not likely to disagree with your nomination unless the nominee can be proven to be an unfit guardian. Keep in mind, if you are divorced, the judge will choose the surviving biological parent unless there is compelling evidence otherwise. If there is such compelling evidence, it’s important for you to document – perhaps in a confidential document – the reason you nominated someone else.
Without a doubt, choosing a guardian can be one of the most difficult decisions a parent can make. Contemplating the “worst” can bring on overwhelming emotions that are paralyzing. We all want the best for our children and no scenario seems perfect. But remember, a less than perfect decision is so much better than no decision at all.