Picking a suitable guardian for your children requires more than just finding someone who is responsible and able-bodied. In fact, there are several special issues to consider.

What if Your Guardian is Unavailable?

It is conceivable that a guardian you name today won’t be able to care for your children years down the road. Older relatives may have passed away or become disabled or your guardian choice may have moved away, suffered an illness or maybe they just have several children of their own now and don’t have the time or the room to take on more kids. To remedy this, you should always name a back-up guardian in case your first choice is unavailable.

What if Your Children would be Happier with Different Guardians?

If you have an unusual family dynamic such as half-siblings or stepchildren, the children may prefer different guardians upon your death. It is usually best to keep siblings together, but you may decide to honor each child’s wish instead. In this case, the guardians will have to work together to maintain the siblings’ family bond.

Should the Guardian Have Financial Power Too?

When you name a guardian, you don’t have to let the same person be in charge of the money you leave to care for your child. Perhaps the guardian you have chosen is great with children but not so skilled in money management. Or maybe splitting the child care and financial responsibilities will help your chosen guardian to focus on caring for your children. Don’t feel obligated to give your guardian the financial purse strings.

What if You and Your Spouse Choose Different Guardians?

Spouses may not always agree on everything, but it is important that both of your Last Will and Testaments name the same guardian for your children. If you differ on this decision, the guardianship choice could wind up in court for a judge to decide. This will create instability for your children during a time when they need stability most.

What if You Don’t Want the Other Parent to Have Custody?

Legally, the remaining parent has the right to custody if one parent should die. If you do not want the other parent to have custody, speak with your attorney to see what steps you can take.

Write a Letter

If you think your guardian decision may be questioned after your death, you should write a letter stating your reasons for your particular choice. This will help a probate judge to determine if your choice is a sound one. Writing a letter can be helpful if your guardian is someone like your same-sex partner, a friend of the family or someone other than the child’s immediate family.

The Bonfrisco Law Firm is a member of the American Academy of Estate Planning Attorneys.

As we age, we all face the risk of being put under a legal guardianship or conservatorship. This happens when a court decides that you can’t manage your personal or financial needs on your own.

A guardian is responsible for making sure your physical needs are taken care of if you’re unable to take care of yourself. A conservator manages your finances and assets if you can’t do it on your own. Often, if you need a guardian, one person will act as both guardian and conservator, taking care of both your financial and physical needs.

Guardians are not just appointed for elderly people. For example, if you were in injured in an accident and were unable to make decisions for yourself, a guardian might be appointed to act for you until you recovered enough to start managing your own care.

Here are the nuts and bolts of the appointment process:

1. If you become mentally or physically disabled, the person who wants to be your guardian – generally a family member or friend – files a petition with the court, attaching documentation that shows you can’t care for your own needs.
2. The court will appoint a guardian ad litem to evaluate the case and report back with their findings. The evaluation may include talking with you, as well as with medical personnel.
3. If you are capable of saying what you want and you oppose the appointment of a guardian, the case must go to trial, where you can formally argue your side. If you’re unable to respond due to disability, the judge will still order a hearing where evidence can be presented, along with witness testimony.
4. After considering all the evidence, the judge will decide whether to appoint the guardian.

A guardianship can only be terminated by court order, upon your death, or if the guardian resigns. In cases where the guardian resigns, another guardian is appointed.

A good estate plan can help you avoid the court appointment of a guardian you don’t want. Estate planning tools like a Revocable Living Trust or a durable power of attorney for healthcare let you have some control over who takes care of you if you can’t care for yourself.

The Bonfrisco Law Firm is a member of the American Academy of Estate Planning Attorneys.

Going through a divorce can be a very traumatic and trying time. Dividing property and coordinating a custody schedule can seem like a monumental task, especially considering the emotional stress you’re experiencing.

But property division and custody schedules aren’t the only issues that must be addressed. If you and your ex created an estate plan, that needs to be reviewed as well because chances are, your ex is named as the person to receive your assets in the event that you die first, speak on your behalf in the event that you become incapacitated, and make financial and medical decisions if you are no longer able to make them yourself.

You and your ex should also review your choice of guardian for your children. If you currently have custody, your ex will assume custody as the surviving parent upon your death, regardless of who you may have named as guardian in your Will.

Once that custody has passed, then your ex-spouse’s Will (not yours) would determine guardianship for your children. If you have concerns about who your ex would choose to care for your children, you need to have that conversation now and coordinate your choice so that you’re both on the same page. An estate planning attorney can help you coordinate this process.

If you feel that your ex would not be fit to assume custody in the event of your death, you’ll need to consult with an attorney to review your options.

The Bonfrisco Law Firm is a member of the American Academy of Estate Planning Attorneys.