Kids – Providing for the Physical Needs of Minor Children

Perhaps no other single estate planning issue is more important for parents than planning for the physical needs of their minor children.

Parents often struggle with deciding who will take care of their minor children if they are unable to do so themselves. We have learned that for many parents the difficulty of making this decision, due primarily to their inability to select the right person for this critical need, often paralyzes them into not planning at all.

We help such parents get over their planning paralysis by pointing out that their failure to plan for the physical needs of their minor children is itself a choice. By not planning, they are simply abandoning to strangers in a probate court the right to choose who will take care of their minor children. Loving parents who realize this overcome such fears and make these important decisions to protect their minor children.

How do I choose who will take care of my minor children if something happens to me?

A Guardian is responsible for caring for the physical needs of minor children. They make decisions involving basic needs such as housing, clothing, medical care, and schooling. The Guardian is the person who will tuck your child in at night.

Choosing a Guardian for minors is perhaps the most difficult decision a parent has to make because it is nearly impossible to imagine anyone else doing as good a job as you would in raising your children!

However, as pointed out earlier, if you do not nominate a guardian for your minor children, a judge who has no personal knowledge of you or your children will decide who will raise them. Don’t allow yourself to become paralyzed trying to find someone who will be as good a parent as you are. As we all know, that person does not exist! Instead, focus on finding the next best person available.

In nominating a guardian for minor children, it is important that you select someone who shares your ideas and values in raising children. Ask yourself the following questions:

• Do you and the potential Guardian share similar religious beliefs and attitudes toward parental discipline?
• Will the potential Guardian give your children the same loving care that you give them?
• Will the potential Guardian give your children the same educational opportunities that you would provide? Please remember, that the Guardian will not normally be required to use the Guardian’s personal funds to pay for these educational opportunities. Rather, you will likely have included in your estate planning documents the requirement that funds be set aside in a trust to provide for the basic financial needs, including education, of your children.
• How old is the person you are considering? A Guardian must not be so young or old that they are unable to care for or cope with very young, adolescent or teenage children. While age is an important consideration, a number of good candidates are often overlooked merely because of their age. Age may be a deciding factor among equally qualified candidates, but it should not automatically disqualify an otherwise appropriate candidate.

Many young parents assume, wrongly in many cases, that a Guardian must be their age or younger. Age has often been cited as a reason not to nominate grandparents or others as Guardians. However, a healthy, loving relationship that already exists between children and a potential Guardian may be the single most important factor to consider when choosing a Guardian! If you believe your child would receive love, nurturing, and care from a particular person, that single factor might outweigh any negatives, such as age or relocation. In many cultures, the older members of extended families often help to raise children.

• Do you want your child raised by a single parent or by a married couple? If you nominate a couple, you should clearly state what you want to happen if one member of the couple becomes disabled or dies, or if there is a divorce or legal separation. Will you be satisfied if one member of the couple, acting alone, continues as Guardian? Or, alternatively, do you wish to provide that if one member of the couple refuses or is unable to act, that another couple is nominated?
• If you wish to name a relative as a Guardian, should you also name the relative’s spouse as a Co-Guardian? It depends. If the relative dies or becomes incapacitated, would you want the relative’s spouse to be the Guardian? In many instances, by naming only the relative, the relative’s spouse automatically becomes the de-facto Co-Guardian, at least during the period in which they remain married and living together.
• Does the potential Guardian already have children? If Yes, will such children be good playmates for your children? Will a person who already has children be able to handle the additional burden, especially since your children may have emotional problems that may require a lot of individual care and attention? Because of these issues, you should not automatically rule out individuals whose children are already grown or who have no children. Sometimes a family with children may better serve as a support network in which all the children can remain friends rather than become sibling rivals.

All of the above issues should be thoroughly discussed with the proposed Guardian in order to ensure that the person you select and nominate is qualified, and to make sure that he or she is willing and able to serve.

Also, in addition to nominating a Guardian, it is always a good idea to nominate a backup Guardian in case the primary Guardian refuses or is unable to serve. This backup person is known as a “Successor Guardian,” and can serve if the primary Guardian is unable or refuses to serve.

How do I nominate a Guardian?

You may nominate a Guardian for your minor children in your Will. Wills are the legal tool used for this purpose because the guardian appointment is officially made in the probate court. As a result, individuals who plan their estate with a Living Trust will also usually sign a “Pour Over” Will. The Pour Over Will not only disposes of any solely-owned assets owned at death, but it also includes provisions nominating a Guardian, and one or more Successor Guardians, for any minor children.

How do I replace a previously nominated Guardian?

Since Guardians are nominated in a Will, the nominated Guardian can be replaced simply by signing a Codicil that amends the guardianship provisions in the existing Will, or by signing a new Will that includes different guardianship provisions, and that automatically revokes all prior Wills.