Protect Your Children!

Lisa,

If something happened to my husband and me, who would take care of our young children? We have heard that we need to appoint a guardian. However, we are confused and do not understand the necessary steps we must take. Would you please explain how we go about appointing a guardian and some of the issues we should consider?  Cheryl

Dear Cheryl,

Thanks for your question, and I certainly understand your concern. Choosing who will raise your minor children if you and your husband die is probably one of the most difficult decisions parents must make – my husband and I included. This task is often so tough that many parents never do it. 

Here is a fact that may wake you up! If you don’t formally appoint a guardian for your children, a probate judge will decide who will act as guardian. However, the person the judge appoints may notbe the person you would have chosen. Family members are likely candidates and often vie to become guardian. If there is more than one applicant, you could be setting the stage for an expensive and lengthy court battle.

You name a guardian for your children in your will, and only in your will. Some people believe you can name a guardian in a power of attorney or another type of legal document. However, this is not the case. You should have your will drafted by an experienced estate-planning attorney to ensure your wishes are carried out.

The person you name as guardian will be raising your child until he or she reaches age 18. Hence, the guardian should share your views on discipline, religion, education, as well as your other important values. I recommend that you and your spouse make a list of potential guardians, and then discuss the choices at length, weighing the “pros and cons” of each one.

Don’t forget to consider close family friends as guardians for your children. And think twice about appointing your own parents as guardians since their age or health may not make them the best choice. I strongly discourage you from naming a married couple as guardians. If the couple separates or divorces, this could result in a legal battle over which spouse will act as guardian.

This raises a related issue – what if the person you name is unwilling or unable to act as guardian (for example, due to an illness) or dies before you? This is why it is critical that you name backup or “successor” guardians. Your will would read something like the following: “I name as guardian of the person of any minor child of mine the first of the following individuals who is from time to time willing and able to act: 1. Mary Smith; 2. John Doe; or 3. Jane Jones.”

And what about your children’s inheritance? Many people are great at raising children, but rotten at managing money. You can appoint one person as guardian, and a different person to handle the finances. Having additional children in the house will cause some degree of financial strain on the guardian. Therefore, the “money person” should have authority to give money to the guardian to buy a larger home and otherwise compensate the guardian for the added expense of acting as guardian of your children.

Still in a quandary? Doing something is better than doing nothing. Remember, if you don’t make the decision, a judge will make it for you. So, review your “pros and cons” list and select the best candidates. You can change guardians at any time by doing a “codicil” (the legal term for an amendment) to your will.  

If you would like to ask me a legal question, post it on the Barrington Patch website or send your question to me at lehmanlawoffices@aol.com.

Thanks again for asking this very important question. Please be aware that this column provides only legal advice of a general nature. You should always consult with an attorney with respect to your particular legal situation.

My Best Regards,  Lisa

DISCLAIMER: Please be aware that this column provides only legal information of a general nature and is not intended as legal advice for any person, group of persons, or entity. You must always consult with an attorney with respect to your particular legal situation and circumstances.