Creating a comprehensive and successful estate plan requires you to do much more than simply deciding who will receive your property and estate assets after you are gone. If you are the parent of minor children, a well-thought-out and properly drafted estate plan is even more important. Your estate plan, for example, is the only official opportunity you will have to choose a guardian for your children if one is ever needed. While it is important to name a guardian in your estate plan, it is equally important to name the right person(s) for the job.
Understanding Legal Guardianship of a Minor
The concept of guardianship is often confusing. The terms “custody” and “guardianship” are frequently used interchangeably when, in fact, they do not have the same legal meaning. Custody of a minor child is something typically determined during a divorce in family court. A parent who has custody of a minor child is not directly supervised by a court. Guardianship, on the other hand, can be temporary or permanent and is usually granted by a probate court, not a family court. Moreover, the court retains jurisdiction and oversight over guardianship of a minor child which often means the guardian must report to the court on a regular basis.
In California, there are two types of formal guardianships that apply to a minor child: guardianship of the estate and guardianship of the person. The same person can be appointed as both guardian of the estate and of the person or there can be a separate guardian for each guardianship. Understanding both types of guardianship is essential when deciding who to appoint as a guardian for your children.
- Guardianship of the person. This guardian is responsible for caring for the child as the parent would. Think of this as akin to having physical “custody” of a child. This guardian can make all day-to-day decisions about the child’s physical and emotional care including basic decisions about food, clothing, and shelter as well as bigger decisions such as those relating to education and medical care.
- Guardianship of the estate. A guardian of the estate of a minor child is responsible for managing the child's income, money, or other property until the child reaches adulthood. This guardian has a fiduciary duty to manage the child’s assets carefully and prudently and to never put those assets at risk.
California also recognizes informal guardianship of a minor child. Unlike formal guardianship, this type of guardianship does not require court approval. A parent may sign a letter of Guardianship Authorization giving someone temporary, limited guardianship over a minor child; however, the parent retains the right to revoke that authority at any time. A parent may also sign a Caregiver’s Authorization Affidavit in California if the guardian is a qualified relative. Both schools and healthcare providers are legally required to accept the authority granted in the affidavit; however, there are other important limits to the authority granted to a guardian in an informal guardianship.
Why Is It Important to Choose a Guardian in Your Estate Plan?
As a parent, the idea of not being here for your children is something you likely prefer not to think about; however, failing to consider the possibility could lead to unwanted consequences for your children. When you create your Last Will and Testament you have the ability to nominate a guardian (or guardians) for your children. While a judge will ultimately have to approve a guardian for your kids if something happens to you, nominating one in your Will tells a judge who you want that guardian to be.
If you do not make it clear who you want to be the guardian of your children, and a guardian must be appointed for any reason, any qualified adult can petition to become that guardian. By nominating one yourself you avoid a judge making the decision without your input. Moreover, when a parent’s wishes are not clear it can lead to a costly and divisive court battle among family members over the right to become the children’s guardian.
Things to Consider When Choosing a Guardian for Your Children
For many people, deciding how to distribute their assets within their estate plan is a far simpler task than deciding who to appoint as a guardian for their minor children. It is not easy to contemplate someone else raising your children but choosing the wrong guardian can be worse than not choosing one at all. With that in mind, consider the following when deciding who should be the guardian for your children:
- Parenting style and philosophies. Your chosen guardian will be raising your children as their own. Picking someone who has a similar parenting style, and a shared parenting philosophy will provide you with peace of mind and make it easier for your children to adjust.
- Religious beliefs. If you have strong religious beliefs, these should be considered when choosing a guardian. Either choose someone with the same beliefs or someone who you are certain will honor your desire to raise your children in your chosen religion.
- Financial circumstances. Although you may be planning to leave behind sufficient funds for your children’s care and maintenance, there is no guarantee those funds will be available should a guardian be needed. With that in mind, it is best to choose a guardian who is financially stable enough to take on your children without additional resources when possible.
- Age and health. If your children are young, your guardian will be caring for them for many years to come. As such, consider someone who is old enough to take on the responsibility of raising children, yet young enough to be able to interact with and actively support your children as they grow up. Also, consider any health concerns of a prospective guardian that might prevent/prohibit that person from being an effective caregiver.
- Familiarity with your children. Unless it is unavoidable, choose someone with whom your children already have a positive and ongoing relationship. The loss of a parent is hard enough on a child. Suddenly being sent to live with someone they barely know will make it that much harder for a child.
- Your children’s wishes. If your children are old enough, ask them who they would want to live with if they had to live with someone other than you. While this should not be the deciding factor, it is worthy of some consideration.
- Willingness to act as guardian. Never assume that anyone – even close family members – is willing to become your children’s guardian. Always have a frank and honest conversation with a prospective choice about the responsibilities of guardianship before deciding to appoint that person.
Mistakes to Avoid When Choosing a Guardian for Your Children
Because it is such an emotionally charged decision – and often one people prefer not to dwell on – it can be easy to make mistakes when it comes to choosing a guardian for your kids, such as:
- Relying on informal guardianship. Any type of informal guardianship, whether accomplished verbally, by letter, or using the Caregiver’s Authorization Affidavit has its limits and should not be relied on as a permanent solution if you are gone. Anyone could petition for formal guardianship and have the informal guardianship revoked. Moreover, your children could end in the foster care system while a judge decides who to appoint as guardian and the person ultimately appointed might be the last person you would want to raise your children.
- Lack of knowledge regarding custody laws as they pertain to your children. If you are divorced, your ex-spouse may have legal rights to your children that dictate who will become their custodial guardian. That is not always the case though. Likewise, the law prefers to appoint a relative when doing so is in the best interest of the children; however, you cannot count on that happening either. Consulting with an experienced attorney is the only way to know with certainty who does, and does not, have rights to your children in your absence.
- Failing to nominate alternatives. Always list more than one person as a potential guardian in case your first choice is unable or unwilling to serve as guardian. Also, remember that the court must approve the appointment of a guardian which makes providing alternatives important in the unlikely event that your first choice does not get approved.
- Not separating parenting from money management. Remember that your children will not only need someone to parent them but will also need someone to protect and manage the inheritance you leave them while they are minors. That can be the same person; however, you can also separate those roles. There might be someone you know who would provide a loving, stable home for your children yet prefer to have someone else with a background in finance manage the money.
- Lack of parenting details. If there are values, beliefs, morals, or educational goals that you hope to pass down to your children, be sure to pass them down to your chosen guardian as well. You can do this in a variety of ways, including through a Letter of Instruction included in your estate plan. While not legally binding, the details included in a Letter of Instruction will help your guardian and can provide guidance to a judge when reviewing the guardianship.
- Assuming someone will raise your kids. It is understandable that you might assume your parents, siblings, or best friend would step in and raise your kids if you weren’t here; however, that assumption may be wrong. Practical things such as age, health, finances, and career aspirations as well as grief and the fear of failure can all cause even those closest to you to not want the job of guardian.
- Not updating your estate plan. You can change your mind at any time when it comes to nominating a guardian for your children. You must, however, update your estate plan to reflect that change. Failing to do so could result in your children being raised by someone you no longer trust or consider capable of raising them as you would.
We understand that decisions such as the guardianship of your children is not one to take lightly. If you are a dentist, optometrist, physician, or veterinarian and have questions regarding your estate plan or need help amending or creating one, contact Dental & Medical Counsel to schedule a complimentary consultation with attorney Ali Oromchian.