As parents, we have all shuddered to think what would happen to our kids if we passed away suddenly. Eventually, we all decide to do the responsible thing and put a plan in place to protect our children. Since the stakes are so high, we want to implement a totally comprehensive solution that cover all the angles if the unthinkable ever happened.
Most attorney’s simply recommend that you appoint a guardian in your will to “solve” this issue. Is that really enough? The discussion should not be quite this open and closed as this. Who will raise your children if something happens to you is an extremely important consideration – and not one you should gloss over. Likewise, how this horrible transition would be handled legally and logistically is another. It gets complicated very quickly. Therefore, failing to put the required amount of thought and into this issue may cause you to make one the six common mistakes I see below.
1. Naming a couple to act as guardians and failing to define what should happen if the couple breaks up or one of the partners passes away. In the event that one of your nominated guardians passes away, have you considered if the other would have the emotional and physical capacity to raise your children as well? If the couple you have nominated has gotten a divorce, do you want to insert your grieving, shocked children into that situation? This is something think about and put into your guardianship documents.
2. Only named one possible guardian. What if something happens to your first choice? The plan you design to protect your children should be iron-clad and have several contingency plans. You do not want a court to be forced to make this decision without your guidance.
3. Have not considered financial resources when deciding who should raise your children. Your guardians do not have to (and often should not) be financial decision makers for your kids. Many times I have clients that write off perhaps the best choice to raise their children because they don’t think that couple or individual could financially support the added burden. This is not the correct thought process and I work with my clients to develop a plan that allows them to name the best guardian, regardless of financial resources.
4. Only have a Will, which means the Court will decide how to distribute your money, it’s totally public and doesn’t protect your money from their divorce and lawsuits. If you have life insurance proceeds or other assets you would leave to your minor children if you passed away, these will be processed by the probate court in your county. Many parents do not like the idea of anyone off the street being able to learn the exact date that their children will be receiving a large sum of money outright. If this is a priority for the parents I help them develop a plan that would keep their assets totally private for their children and also protect them from lawsuits, creditors and divorce even when the children grow up.
5. Did not exclude anyone who might challenge your guardian decisions or who you know you’d never want to care for your kids. If you have family that might challenge your nominations in court, it may be a good idea to specifically exclude that family member so that the court will recognize that you specifically did not want them considered to be your children’s guardian. Often times the thought that they may have access to some of the children’s inheritance will bring these relatives out of the woodwork so to speak. I work with my clients to confidentially exclude these relatives just in case the situation presented itself. The relatives will never know such a document exists unless it is needed.
6. Only named guardians for the long-term and did not make any arrangements for the short term if you were in an accident. What would happen in those immediate hours until your permanent guardians could arrive? This is a scary and often overlooked situation. I like to protect my clients children with additional temporary guardianship options in their direct area that would have a better chance of quickly being on the scene if needed – especially if your my client’s choice of permanent guardian lives any distance away from the family home.
If you feel like your plan may have overlooked some of these issues I would love to speak with you further. I only take a limited number of clients per month, but would love to speak with you by phone to hear about your specific situation and whether I could be of service to you. I would be happy to provide you with some personalized advice about appointing guardians whether we end up working together or not.
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