Parents need to direct the same energy used to map out a sleeping/feeding schedule, decide which diapers to buy, or what preschool to enroll in, to having a will. That’s the document that is used to distribute your assets and, for parents of minor children, name a guardian who will raise your child or children, if parents should die while their children are still under legal age.
If you don’t take this step, the court will decide, and your children will be left to whoever the court thinks is going to be their best guardian.
U.S. News and World Report’s recent article “How to Choose a Guardian for Your Child” says that, at worst, forgetting to name a guardian can mean a long court proceeding. This can be expensive, cause stress in family relationships and put your children in guardianship limbo.
There are two types of guardianship to consider when deciding who will care for your children: guardian of the estate and guardian of the person. The guardian of the estate is a person who’ll manage the minor child's inheritance on their behalf. It’s a fiduciary responsibility, and this guardian must make sure he or she carefully and appropriately manages accounts, keeps receipts, reports back to the court and doesn’t comingle the child's assets with his or her own. Another option is for a parent is to set up a trust and have a trustee manage the funds for the child. This can allow the parent more control over how and when money is distributed, especially if you anticipate leaving a substantial inheritance.
The guardian of the person is the daily caretaker who’ll make sure your child gets health care, educational, housing and has all other needs met.
These two guardians can be the same person or different people, depending on the skills and abilities of your family members and friends. A separate person managing the estate can provide a series of checks and balances that can help, if you are concerned about the misuse of your child's funds.
You may want the guardian of the estate to have good money-management skills. The guardian of the person may be someone who shares your same values, has the energy to raise a child and is close by so that your child doesn’t have to lose the familiar comforts of their school and neighborhood.
You should also name backup guardians, in the event that the primary guardian is unable or unwilling to take on the responsibility. You should also be sure to speak with your guardians ahead of time and make certain they understand the responsibility and are willing to take on the task of helping care for your children, if you pass away.
An experienced estate planning attorney will be able to help you draft a will with the terms of guardian ship included, create a power of attorney and health care proxy and help you work through the difficult question of who the best guardian for your children will be. That is admittedly not a legal issue, but with years of experience helping families, the attorney will have helpful insights into the guardianship process.
Reference: U.S. News and World Report (June 4, 2019) “How to Choose a Guardian for Your Child”