ESTABLISHING GUARDIANSHIP: WHY IT’S SO IMPORTANT AND THINGS TO CONSIDER
- Posted by Clay Caldwell, CFP® and Rich Winters, CFP®, CRPC®
- On February 19, 2019
- estate plan, estate planning, financial plan, guardianship, will
If you and your spouse were to pass away, who would assume legal guardianship of your children? Would your extended family members decide who raises your children? Would the courts decide? Maybe it would be a combination of the two? And for separated families, what kind of additional complexities exist?
While it is a difficult thing to think about, answering these questions now and clearly defining your wishes provides peace of mind for you and your children. This peace of mind is one of the best reasons to establish guardianship within your will as part of your family’s estate plan. A fully executed will is the only legal document that is recognized for establishing guardianship of minor children.
WHAT HAPPENS IF YOU DO NOT ESTABLISH LEGAL GUARDIANSHIP?
Without a guardian appointed, the courts have statutory guidelines that will be followed. The standard arrangement if both parents pass away is for a grandparent to take care of the children. If more than one grandparent is in the picture, the courts will determine which grandparent is best suited for the responsibility. If all grandparents have passed, the nearest living relative to the child (aunts, uncles, cousins) will be appointed. Lastly, if no grandparents or close relatives are in the picture, the courts will appoint someone else who is deemed qualified to raise your children.
As you can see, there is a lot of room for interpretation within this process, and your relatives may have strong, differing opinions about which option is the best for your child. Just as important, this process can result in someone being assigned guardianship who does not want – or have the capabilities – to fulfill the role.
While all of these situations are not ideal, they can be eliminated by declaring who should assume guardianship of your children within your will.
KEY FACTORS TO CONSIDER IN APPOINTING GUARDIANSHIP
While you may have a number of people in mind that would make good guardians, it’s important to carefully consider who would be the best for your children. This is a deeply personal decision for every family, but below you will find a few considerations that you may want to keep in mind.
For many parents, this is the most important factor. They want to find a guardian that closely aligns with their personal, religious, and moral values in life, as this person will help continue the legacy that they have started.
While grandparents may be a natural first choice, it’s important to consider if aging grandparents will have the physical ability to act as a guardian in five, ten, or fifteen years. This is especially important for families with very young children.
If you have built a solid estate plan, it is very likely that your children will be financially cared for even after your passing. Even with this in place, it’s still important to consider the financial situation of the individual who will be caring for your children. For a potential guardian who already has two, three, or four children of their own, caring for your children may be too much of a burden for them to bear. Lastly, it’s important to note that you can assign one person as your children’s legal guardian and one person that is responsible for managing their inheritance.
When a parent passes early in life, it is an unbelievable hardship on a young child. By choosing a guardian who lives in your same town or region, it will allow the child to stay in their same school and spend time with their same friends while processing the loss.
- Keeping Children Together
While this may seem obvious, it’s important to consider if you’d like your children to remain together after your passing and set up a guardianship agreement which makes this possible. This means that each child should be specifically referenced within your will and the guardian responsible for them should be detailed as well.
- Interest Level
Last, but certainly not least, is the interest level of the person who will care for your children. It is always important to speak with a potential guardian and ensure that they are committed, and honored, to take on the responsibility if it were to arrive.
HOW TO GET STARTED
RAA is happy to help if you have questions about a guardianship agreement or about your overall estate plan. Our team has the expertise to work with you and your attorneys to ensure you have a plan in place to protect your family, and your legacy, should something happen to you.
Request a call to speak with an advisor and learn more about how we can help you based on your unique needs.
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