What will happen to my children if I get really sick? What will happen if I die? If my kids’ father is not alive or is also sick, or we’re in the same horrible car accident, what happens? I worry about what will happen to them if something happens to me. I don’t want my mother to be anywhere near my children. How can I be sure my children are taken care of and my mom is not awarded guardianship?
These are some questions and concerns shared by a frantic mother who needed peace and assurance her children would be taken care of should the unthinkable happen. She cried at the thought of her children being orphaned and of the possibility of missing out on those after school conversations, watching the joy of that “first love”, homecoming, prom, graduation, marriage, grandchildren. This was a difficult conversation, but one she knew it was necessary and that she needed to make a plan. It was at her insistence that she and her husband came to see me about preparing their estate plan.
The Main Thing: Guardianship
The primary concern for any parent is, who will care for my children? If children are under 19, a Guardian must be named. The Guardian is the person who will raise children when the parents are unable to care for them due to death, incapacity, or incompetency. Some parents are paralyzed over this decision because it’s so incredibly important. Partially to blame for the paralysis is because we feel a sense of obligation to name our parents as guardians, though we don’t think they are the best people to raise our children.
You don’t want to hurt anyone’s feelings by not naming them and everyone expects the grandparents to take in orphaned children. However, the grandparents may not be the best people to raise your children. I give clients permission to not name their parents. Planning for your child’s future without you is not a time to be concerned about hurting someone’s feelings. You should be laser focused on what is in your child’s best interest.
Who Do You Want To Raise Your Children?
There are problems naming those people we feel obligated to name. What is the age of your child? What is the age of the grandparents? Think through the hypothetical situation in which you pass away when you have a five-year-old child, and your mother or mother-in-law, is in her seventies. When your child is 10, your mom or mother-in-law will be in her 80s. So can she keep up with a 5 year old, a 10 year old, a 15 year old? When she’s 80 and your child is 10 wanting to do all the sports, all the activities, and all the things – can she keep up day after day, week after week? What kind of life will it be for a 10-year-old to have an 80-year-old as his or her guardian? Will your child then feel obligated to turn down opportunities to do sports and other activities so to not overburden or overtax the grandmother? How fair is that to your child?
Maybe your parents don’t want to take in your children? Sure, they will do whatever is needed of them, but maybe they don’t want that burden or responsibility if there is someone else willing and able to take in your children. Have you asked them?
All Stages And Ages Of Life
Another consideration before naming a parent is the possibility of your guardian dying before your child is 19. Continuing the hypothetical that you have a 5-year-old, and you pass away and then she goes and lives with your 70-year-old mother, let’s say a couple of years after you tragically die, your mother has a heart attack and passes away. Now your child, at 7 years of age has lost both parents, and the guardian grandparent, and will be uprooted – again – and have to live with yet another person. That is a lot of loss and change for a child to absorb.
As you are thinking about who to name as the guardian of your children, think through not just the different ages and stages of life of your child’s life, but also think through your guardian’s ages and stages of life.
Considerations for Choosing a Guardian
- Active Children: If the unthinkable thing happens to you, you want to keep your children as stable as possible. Consider your child’s activity level. Are they athletic? Are they a bundle of energy who you can barely keep up with? Are they a bookworm? If you have active children, can the guardian keep up with them, keep them active in all the activities, and keep up with the day-to-day energy your child brings?
- Morals and Values: What do you want to teach your children? What are the morals or the values that you are instilling in them. You want to be sure that continues throughout their lifetime, even if you are not there to take care of them. Does the person you want to name as the guardian have those same ideas, values, and morals as you? Will they continue to instill those same morals and values in your children?
- Education: Do you value education? Does the guardian value education? Are they going to put a priority on education as you do?
- Spiritual and religious beliefs: Do you have certain strongly held religious beliefs? Are you involved in your own religious or faith practice? Will this guardian do the same? Will your guardian take them to their house of worship?
- Relocation: Will your children have to move with this person as guardian? Does the person you want to name as guardian live in California, requiring your children to move from Alabama to California? That will be a big culture shock on top of uprooting your child. Consider whether that is what’s best for your children. If you have other options, you may want to consider someone who can keep them locally. Or, if the guardian lives in California, is it an option that he or she move into your house in Alabama and raise your children?
- Special Needs Children: With a special needs child, there are further considerations. Does this guardian know anything about your child’s disability? Will they be your child’s advocate? Parents of a special needs child must be advocates for their child, so you want this guardian to also be an advocate. Does your child have dietary restrictions? Can the guardian keep up with those dietary restrictions and with he or she follow those restrictions?
When you name your guardian, you must have the conversation with him or her about your child’s needs, whether or not you have a special needs child. When you name a guardian, say, “Hey, if I pass away, you’re raising my child. This is what I want and expect. Are you willing to do this?” Let the guardian know your expectations of them as well as your hopes and dreams for your children.
Keep a list or a journal of doctors, medication, dietary restrictions, and other things required for all your children, but particularly for a special needs child, so that, if something happens to you, that person can come right in, find your journal, find your list, step right in and know what to do.
Distribution of Assets
Children under 19 cannot inherit directly in Alabama. That is, if you name them as beneficiary of a life insurance policy and you die when they are under 19, that life insurance money cannot go to them directly. A conservatorship will be set up to accept that money and hold it until they turn 19. This will be covered in more detail in a subsequent blog. Minor children should not be named as payable on death beneficiaries.
Are You Ready to Protect Your Family?
If you are ready to protect your family and ensure your choice for Guardian of your children is who actually gets the appointment, contact Huntsville Estate Planning Lawyer, LLC at 256-361-1221 or schedule online your complimentary virtual consultation by clicking HERE. Don’t wait for the proverbial “one day” that you always say you’ll get to it. Make that “one day” this day and have peace of mind knowing your children will be in good hands if the unthinkable happens.