Guardianships: Don’t Think You Need an Estate Plan? What Happens to Your Child if You Die?
If you need one reason, and one reason alone to set up a trust, it should be for your children. Many people delay setting-up their estate plan for a whole host of reasons (e.g., “I’m too young,” “I have more important things to address now,” “estate plans are only for wealthy people,” etc.). I find that one issue that causes people to “bite the bullet” and begin the estate planning process is the need to designate a person to serve as guardian for their minor child or children should the parents die or become incapacitated. An Orange County estate planning attorney of Modern Wealth Law can help your prepare your Will and properly appoint someone you trust to care for your children.
I understand that other parents do not want to believe that something awful could happen to them that would leave the care of their young child or children in the hands of someone else. Most likely, something awful will not happen. But, if it does, it’s important for each minor child’s welfare to have a trusted relative or friend lined-up to take care of them, this is a guardianship.
If the parents do not designate a person to serve as guardian of their minor child or children, and if a guardian needs to be appointed, the court will appoint a guardian looking towards the “best interests” of the child or children in making its choice. The person the court appoints as guardian may not be who the parents would have chosen for this role and may not be the best person for the child or children. The parents know their children better than a court and can avoid this problem by designating one or more persons who they believe would be the best guardians for their child or children.
Careful consideration should be given to who should serve as guardian. The role of guardian may be broken down into two functions: one to take care of the minor child’s finances (the guardian of the minor child’s estate), and one to take care of the minor child’s personal care (the guardian of the minor child’s person). Different people may be designated to serve as guardian of the minor child’s estate and guardian of the minor child’s person, depending on their respective skills. Clearly, the guardian of the minor child’s estate needs to be a trusted individual who is financially savvy and has the same financial values as the parents. The guardian of the minor child’s person also needs to be a trusted individual and should share the parents’ values about raising children. Most importantly, the minor child or children should have an established relationship with the person or persons designated to serve a guardian of the person.
In addition to thoughtfully choosing a guardian of the estate and a guardian of the person for a minor child or children, it is helpful if the parents set forth written guidelines for the guardian so that he or she is aware of the parents’ wishes for their children. For example, the following issues may be included in guidelines for the guardian:
- Should the minor child or children continue to live in California?
- What type of schools should the minor child or children attend (e.g., pubic vs. private)?
- Should the minor child or children participate in certain religious training/ceremonies?
- What extracurricular activities should be available to the minor child or children?
- Should the guardian encourage the minor child or children to have contact with extended family members?
- Should the minor child or children continue to take regular family trips/vacations?
If a guardian is ever needed for a minor child, it is important that the parents take the time to choose thoughtful, loving people to fill their shoes so that their child or children are properly cared for when they are no longer able to do so.
John Wong advises on all aspects of estate planning, probate, asset protection and trust administration. He believes that estate planning is about planning for life; while having protections in place should the unexpected occur.
