TrustsEstates_dv716064_Feature_1920x945

09.30.20

Who will care for your kids if you cannot?

BY Samantha Owens

Becoming a new parent and planning for your child's wellbeing is stressful for anyone. Add in a global pandemic, and you may be feeling the stress to make concrete plans a little more urgently. Now is the time to stop putting off the hard decisions and carefully consider who will care for your children if you become unable to do so.

So where do you start?

Understand how your children will be cared for.

Should something happen to you, your child will need someone to step in for their care. Stand-ins for parents fall into two roles: a legal guardian and a conservator (or a trustee if you set up a trust for your child). Your child's guardian is responsible for more than just clothing, feeding, and housing your child. A minor's guardian is responsible for making legal decisions and medical decisions for your child. A conservator, on the other hand, is legally empowered to make financial decisions for your child, including paying bills, managing assets, and making investments.

Weigh your options.

Before nominating a guardian, it is critical that you consider candidates who will be well-suited for these roles. You nominate both a guardian and conservator in your will. Most parents name the same individual(s) as guardian and conservator; however, it is worth considering naming separate individuals to fill the guardian and conservator roles. Based on their respective strengths, certain individuals in your life may be better suited for one role over the other. Your ideal candidate for one position may not be your ideal candidate for the other. When nominating it is important to be explicit with your wishes and consider who will best honor them. For instance, if you are naming your spouse's parents as guardians for your minor children, will they ensure that your children maintain a relationship with your side of the family?

It is also important to have a detailed discussion with your child's other parent to identify circumstances under which you may or may not want potential nominees to serve as guardian or conservator. For example, if the couple you've chosen to be your child's guardian go through a divorce, who should ultimately be responsible for your child? Would you prefer a different couple step in under those circumstances?

If you don't have a will, or if your named choice should be unavailable, a court will choose a guardian and/or conservator after determining the "best interest of the child(ren)." Keep in mind that if you currently share custody with another person, conflicting appointments of a guardian and/or conservator will require a court to step in and resolve the discrepancy. It's in everyone's best interest to make sure that you and your co-parent are on the same page now rather than needing to go to court later.

If your assets are complex or substantial, you would want to set up a trust for your child in place of relying on a conservator. You would still name a legal guardian.

Make the ask.

You should always ask your choice of guardian and conservator if they will accept the responsibility. Being nominated as a guardian may seem like the ultimate honor, but it is important to have a candid conversation so that your children are not placed with someone who sees them as an unwanted burden.

No matter the size of your estate it is important to work with an estate planning attorney to ensure your plans accurately reflect your intentions and are legally enforceable. Although you can revise your plans at any time, your attorney will ensure that your documents are forward thinking to keep you from frequently needing to change them.