A guardian is the person designated by court appointment and given the responsibility of managing the personal affairs of a minor child or a person that is legally incompetent.
Naming a guardian for minor children if something were to happen to you is one of the most important elements in estate planning. A parent’s will is usually the document that names a person’s choice of guardians. Technically, an appointment of guardian can be made in a document separate from a will. In any case, appointing guardians is a court function. The judge has to appoint and “empower” the guardians. The guardian receives his or her authority from the state to take legal responsibility for a child or incompetent. You can’t endow that authority in a trust or any other document. When you name guardians in a will, you are simply telling the judge what your choice of a guardian is. The judge will almost always support your choice. It may be important to “educate” the judge as to why your pick is the best one. In the will you can make that argument before the judge.
You may need a guardian for yourself if you become incompetent, but you obviously wouldn’t name one for yourself in a will. You would be dead. You name a guardian and “agent” to take care of you and act for you in a durable power of attorney. The courts do not have to approve your agent, so most of the things you will need when you become incompetent can be done without court supervision.
Choosing guardians really can be difficult, yet no one is better qualified to make that choice than you for yourself or the parents for their child. I have had clients who came to get their estate plan done, and they have waited until their minor children reached majority to finish the plan because they could never agree on a choice of guardians. Usually the children aren’t orphaned, but what if the children need a guardian? If Mom and Dad haven’t made a choice of guardians, the court will make a choice for them. The truth is, by naming the guardians, your minor children or grandchildren will have a more peaceful transition at a time when everyone is desperate for any peace they can get.
If you have children or grandchildren, take the time to protect them. The problems and pain that are caused when parents neglect making a will and appointing guardians just aren’t worth it. If parents carefully do their estate planning, they can have a great deal of control over what happens to their children after they die, and serious court battles will be avoided. The judge handling matters for the children will appreciate every word their parents write to give him direction. After all, these are a parent’s last words concerning the most precious thing they have on earth — their children. About 95 percent of the wills that appoint guardians fail miserably to adequately protect the children and give parents a clear shot at influencing a judge.
A will can be written to put qualifications on the potential guardians. Parents often choose their parents (the children’s grandparents) as guardians. That may be great today, but in ten years when the guardians are actually required to act, will the grandparents have the health to take care of their grandchildren? The will should anticipate the changing health of grandma and grandpa. Most wills simply state, “John and Mary, guardians to my minor children.” You can do better than that. Coach the judge in your will. It should read, “John and Mary, provided they raise the children in our family home where the children are living at the time of my death.” “John and Mary, provided they are still happily married and harmoniously living together.” If John and Mary are divorced or have a domestic violence rap sheet when they are supposed to be named as guardians, you don’t want your kids to go live there. The will could read, “Grandma and Grandpa, provided they have the health to take care of the kids.” “Grandma and Grandpa, provided they don’t sell the kids.” You get the picture.
This education process becomes very important if there has been a divorce and you are trying to convince the judge that someone other than your ex-spouse should be the guardian. In almost all cases, the biological spouse will obtain guardianship over the children. If you share joint legal custody of the children, your Ex will have automatic guardianship over the children if you die.
If there are serious, merited concerns about the Ex raising the kids, a well-written will could lay out a case why the Ex shouldn’t be the guardian. The judge has discretion and in fact should do what is best for the children. Telling the judge you hate your Ex isn’t going to persuade the judge, but if you lay out a factual case, maybe you can sway the judge and have him or her select your choice for guardian rather than just automatically giving your Ex the kids automatically.
Many of my clients have stated that the person who would make the best guardian would not be the best money manager. That’s OK, because you can name a trustee to manage the children’s money, and the trustee and guardian don’t need to be the same person. It would be best to have a trust and have the children’s money managed in the trust by the trustee. If you don’t have a trust, your will could still name a conservator for the children’s estate and a guardian for the children. The conservator and guardian don’t have to be the same person.
The guardians must stand ready to raise your children, not only if you die, but also if you become incompetent. Guardians must be adults able to act legally on behalf of the children. Whom do you appoint as guardians? Obviously, you appoint the people that you think will best care for and love the children. You should try to appoint guardians who feel the same way you do about religion, education, discipline and other important aspects of life. You should name a first choice, second choice, and probably even a third choice. You could name an older child, because he or she may be of age by the time a guardian is needed. If a guardian’s services are needed before that child is old enough, then the second choice would be selected by the court.
I understand that many of you are past the minor children stage of life, but it is really important that you also make sure that your children have wills naming guardians for your grandchildren. You need to put a lot of pressure on your kids to protect your grandchildren. You need to nudge their parents in the direction of taking care of their estate planning so your grandchildren will be protected. It is a real mess if your kids die leaving grandchildren orphaned without any financial plan or guardian in place. Those are the worst messes I have dealt with in estate planning. Every kid NEEDS to have guardians appointed in their parents’ wills.
P.S. This is only one of the important subjects covered in my book Protecting Your Financial Future.
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