Who finds it pleasant to think about their children being raised by someone else? No one. However, if you don’t tell the court who to appoint as guardian, then a judge you do not know, and who does not know your family, will decide for you. Would your child prefer to have a stranger make that decision? No. This choice is yours to make. Get paper, a pen, and try this approach.
- List everyone who is a possibility as guardian, even a remote possibility. This might include friends. Single people. People with no kids. People with grown kids. People who live far away.
- Next, take the Value Majority test. List five values that are most important to you, and choose candidates from your list who share at least three of these values with you. This is my partial values list as an example to get you started: parenting style; attitude about education, work, money; faith, religion practices, beliefs; social values; attitude about closeness with family, friends.
Now you should have a list of people who rank as good candidates. You should choose at least three. What if you have several people who meet the test and make good candidates, but you wish to shorten your list? Here are some of my observations. First, it can be disruptive to uproot children from everything that is familiar to them, so if Joe lives in your area but Jane lives across the country, choose Joe. Second, a court might not approve a person you designate who has a history involving alcohol or drug addiction, or a criminal record, even if they do share three out of five of your values. Third, please do not name married couples. Divorce happens to the seemingly best couples, and you do not want your child caught up in a custody battle. If Mike and Carol Brady both share your values and made your list, choose one as guardian, the other as successor guardian. Fourth, choose candidates who are likely to keep your children in touch with your family.
Trying this approach should result in at least a few guardian possibilities. This issue is difficult to think about, but thinking about it is exactly what needs done.
Contact me at email@example.com if you want to get started on a will to name your guardians.
- You have no estate plan! I cannot think of a reason why any adult should not have at least a Last Will and Testament, durable power of attorney, and advance directives (healthcare documents: living will [do you want artificial life support?] and healthcare power of attorney). If you die or become incapacitated without having any of these documents, state law controls what will happen, not you (through your documents) or loved ones. This could cause unnecessary and unexpected costs, delays, and loss of privacy.
- If any of these have occurred to you or, if married, to your spouse: marriage, death, birth, divorce, second marriage. These occurrences call for a review of your estate plan. Not reviewing your will and/or trust after any of these events could lead to unintended beneficiaries or fiduciaries.
- Speaking of fiduciaries…review the people you designate as fiduciaries in your documents, such as executor of your will, trustee of your trust, guardian of your children, agent in your powers of attorney, to name a few. Are they still alive? Are they still capable of serving? Do you still want them to serve?
- Review your beneficiaries. Review who you listed to inherit from you. Are they still alive? Do you still want to bequeath to them, or add additional beneficiaries? You should definitely review life insurance and retirement plans and other assets that have beneficiary designations, since the person you name on such a designation will inherit regardless of what your estate plan states.
- Your current plan is more than a decade old. There have been many tax and other changes that could affect older plans, but a major change with my practice is that my clients now plan for their “digital assets.” What happens to your pictures on Shutterfly, or your Facebook and LinkedIn accounts? What happens to money in your etsy or ebay store’s PayPal account? Do you want your spouse to have access to your Facebook account at your death? Or your emails? These “assets” should be reviewed, and you should consider what you want to happen to them at your death.
- Trust funding. There have been so many people who have created a trust plan but did not fund the trust, which meant at death the trust was useless. You must fund a trust, which means you put assets into the trust—typically by re-titling or deeding assets from you personally, to you as trustee of your trust. You can fund while living, or set it up so that this funding occurs at your death.
- Beneficiary becomes disabled. If a beneficiary has become disabled, or you wish to provide for a beneficiary who is disabled, then it is paramount that you discuss special needs planning, such as a special needs trust, with your attorney. Leaving assets directly to a disabled beneficiary could jeopardize certain benefits they might receive, such as Medicaid.
If you would like to discuss your estate plan, contact me at firstname.lastname@example.org.
I received several inquiries after my recent post on Letters of Intent, or instructions for guardians or caretakers of your children or pets. I have specific forms I have developed for children, pets, and children with special needs. If you would like pricing for those, email me at email@example.com, or message me through my law office’s Facebook page.
Letters of Intent can be created by you (versus an attorney), and many parents have done just that. These can be in-depth, broad, more limited–it’s up to you. To guide you, here are links to three examples, all from moms who were dying of cancer:
- A simple, specific, instructional Letter of Intent, “Mummy Manual”: http://www.dailymail.co.uk/news/article-346306/The-mummy-manual.html
- An in-depth, broad, far-reaching Letter of Intent with guidance: http://www.telegraph.co.uk/news/health/news/10084492/Dying-mother-leaves-20-point-plan-for-happiness-for-her-family.html
- Letters written to child to be given at certain life moments, a series of Letters of Intent: http://metro.co.uk/2015/07/23/mum-terminally-ill-with-cancer-writes-letters-to-her-four-year-old-to-last-a-lifetime-5308613/
What will be most helpful to your guardian? What information will help your child the most? The links to the different letters could be used to guide you in adapting such letters to specific situations, such as pets.
Send any questions to firstname.lastname@example.org
If you have started the process of planning for the future of your loved ones if something should happen to you, then congratulations, you have taken responsible steps that many people—estate planning attorneys included—have avoided taking. You are probably thinking most about who would care for your children, even pets, if you can’t. So, you decide on a guardian, or caregiver for your pets, and hopefully two successors. You name them in your will. Don’t stop there.
Do your guardian or caregiver, and especially your children or pets, the favor of easing their transition to this new life without you by completing a “letter of intent,” or caregiver guide. A “letter of intent” gives information and details to your guardian or caregiver about everything from daily routines to hopes for the future. Everything from food likes and dislikes, doctor names and extracurricular activities, to hopes for education, thoughts on values and religion.
“Letters of intent” for pets (sometimes called Caregiver Guides) detail health history, food preferences, and allergies. Explain how the pet lived (crated at night or not? Walked on a leash or more accustomed to fenced-in yard?), thoughts on parameters with euthanasia, and other aspects of the pet’s life.
The most important subject for a “letter of intent,” however, might be a child with special needs. For many children with special needs, routine and familiarity are critical. Children on the autism spectrum can struggle with the most minor change (a subjective term) in their day or routine. Replicating a child’s routine as much as possible might reduce stress for a child with disabilities in adjusting to a different house, different people, different sounds and surroundings. A “letter of intent” would give a guardian a greater ability to provide the things necessary to help the child cope, particularly by continuing the child’s daily routine.
If you have any questions about preparing your own letter of intent for the care of your loved ones, email me at email@example.com.
It is difficult enough thinking of dying, but trying to imagine someone else raising your children makes the thought even more difficult. Every responsible parent needs to confront this difficult issue.
If you and your spouse (or the child’s other parent) died in a simultaneous manner, where would your children go? If you do not have a will that nominates a guardian, the court will decide. Do you want to let a judge who does not know you or your family, make this important decision? For most people I know, that answer is “no.”
The most important step you should take is nominating a guardian for your children, and preferably two alternates, in a will. Why is this important? Your nomination will:
- reduce the delay in appointing a guardian because the court will not have to consider factors and then make the decision;
- reduce the potential for family disagreement among those seeking guardianship if no one is named, and spare the children of dealing with family discord;
- provide for a smoother transition for children and family who are grieving;
- avoid appointment by the court of people you believe are undesirable in raising your children.
Letting your children know who you have named might ease anxiety in situations where a parent is faced with a terminal illness or other medical conditions that might cause them to fear their future (where will we live? Who will take care of us?) should a parent die. I’ve seen children struggle with these worries more than usual with parents in the military, parents who travel frequently for work, or parents in high-risk professions such as first responders.
Death is a tough topic, but you must confront it if you have children. Parenting involves making tough choices, including naming a guardian who’ll parent your children if you cannot.
Contact me at firstname.lastname@example.org if you want to discuss nominating guardians for your children.
For parents of a child with a disability, who have made every decision for that child for his or her entire life, they can be surprised to learn that they need to obtain guardianship over the child to continue such decision-making once the child turns 18. Should you seek guardianship of your disabled child?
Guardianship takes away all of the choices a person can make in life. It is a serious matter and can be time-consuming and costly. There is court oversight and the guardian is responsible for financial accountings and other reports to the court. In general, before pursuing guardianship over someone, consideration should be taken of all less restrictive alternatives.
A person, typically a parent, interested in pursuing guardianship must petition the court. Clear and convincing evidence must be presented that shows the judge that the person lacks understanding to make or communicate decisions or is unable to manage his or her property and affairs effectively due to disability.
Each state has different standards when pursuing a guardianship. Ohio has new rules pertaining to guardianships. The Ohio Revised Code’s laws pertaining to guardianships (and conservatorships): http://codes.ohio.gov/orc/2111. If you have any guardianship questions, contact me at email@example.com.