by Loulena Miles, California Estate Planning Attorney
and Partner at Miles & Torres Associates
When we set out to put our estate plans in order, those of us who have minor children must make some tough decisions about who would care for our children if the unforeseeable happened to us and our children were left without parents. This is an understandably difficult topic, but it is one of the most important decisions that you can make when you plan your estate – and one that can have the most far-reaching consequences for those you love.
The first consideration is who should be the child’s custodial guardian, that is who should raise the child. Despite the fact that the court ultimately decides who becomes the guardian, the court will take the parent or parents’ wishes seriously if there is reliable documentation of the preferred choice for guardian. In the absence of documentation of the parent’s wishes, the court will usually choose a family member or person close to the child, who requests to be the guardian, and appears suitable after an investigation into their background.
The next consideration is whether that person should also be the child’s property guardian, that is, who should manage and grow the financial assets you leave to your child. You can choose different people to serve as guardian of the person and guardian of the property. This is probably a good idea if the person whom you prefer to have physical custody of the child is not the best person to manage the child’s assets. You can leave a letter for the property guardian explaining what expenses that you would want covered, such as the child’s education or a rent increase for the additional housing need created by your child. Consider whether you need life insurance (or to supplement your life insurance) to cover your child’s expenses.
In order to start the process of selecting a guardian (and a couple of alternates), it is a good idea to make a broad list of potential candidates. This often includes blood relatives but you might also want to consider trusted friends of the family and other families or individuals who your child is close to. If you have multiple children, consider whether you would want to have the same person to be the guardian for all of your children or if you believe it would be better for them to live with separate guardians. When selecting a guardian or guardians for your children, it’s important to follow your instincts about possible choices.
You should next think about the ideal qualities, values and attributes of your child’s guardian. Here is a list to get you thinking, just use it as a starting pointing to make your own list: cultural background, financial savvy, family ties (with your family and with their own if they are not a part of your family), location, faith, education, health, social networks, trustworthiness, resourcefulness. Of course this is just a start but once you have your own list, think about the relative importance of each of these qualities. You’ll begin to see what matters the most to you in evaluating potential guardians.
No one can replace the loss of a parent, but an honest assessment will help you come to terms with the strengths and weaknesses of each possible guardian. It’s also important to consider whether the potential guardians are married or in stable households. Please carefully consider whether you would want to choose a couple as joint guardians. If the marriage/relationship crumbles, it could leave a custody battle for your child to have to endure. It might be preferable to choose the member of the couple that you feel is a more suitable guardian to be the named guardian.
When you have narrowed it down to a few options, meet with the possible guardians and talk with them about whether they are willing or able to take on this responsibility. These conversations will help you with your decision. You might learn that the person has already agreed to be the guardian for another child if the circumstances arose, and feel uncomfortable taking on another obligation. Or, perhaps they don’t feel that they have the financial means to adequately provide for your child without additional support. If your child has another parent, try to come to a consensus about the guardian and try to name the same person in each of your wills.
Once you have selected the guardian (and alternates), document your desires and expectations for how you would want your child raised in a letter attached to your will. Specify your hopes for your child, including naming the values that are important to you. Include your reasons for choosing them, what you want them to know about your kids, your feelings about education and faith, and your wishes about their relationships with extended family. This letter should be amended with time as your child grows. In fact, you should consider revisiting your choice for guardian every five years or so as your children grow and your relationships change.
You may not be able to plan ahead for every need your child may have, but if you create a legal framework for property inheritance and management, and choose a loving and competent guardian, then you have done the best you can and you can rest easy.
Please feel free to contact our firm Miles & Torres Associates for a free consultation about the estate planning tools that are right for you.