Planning for the Future: Estate Planning for Those with Minor Children
Have you ever considered who would care for your minor children if something happened to you? It’s a difficult thought, but as parents, we are constantly challenged to navigate our children through difficult times, and this is no different. Selecting a guardian for minor children is often the most significant concern for parents when it comes to estate planning. Having the difficult conversations now and establishing a legal and enforceable plan is the best way to ensure that if the unthinkable happens, the people raising your children will be the ones that you have selected after careful consideration. They will be in the best position to care for your children in the ways you want.
Remember that if you haven't created a plan, state statutes provide one for you, and it may not play out in the way that is best for your children. Furthermore, if you don’t set forth this decision through a valid Will, the decision will be in the hands of a Court. Start planning now to ensure that your children will be cared for by your chosen guardians.
What is Guardianship?
Guardianship refers to the legal arrangement whereby a person or entity is appointed to care for a minor child (physically and financially) if their parents cannot do so. If a guardian is not set forth in a valid Will, the Court will determine a guardian based on the best interest of the children, hearing from those petitioning for guardianship and, depending upon the age of the children, even hearing from the children themselves. Be aware that this process is not only emotionally taxing during a time of grief, it could also create conflict if more than one family member or friend is petitioning for guardianship. Taking the time to select a guardian now will ease the pain of this situation in the future.
A guardian may be a family member, a close friend, or a professional appointed by the court. The guardian is responsible for providing the child's basic needs and making important decisions about their education, healthcare, and well-being.
Important Factors to Consider When Choosing A Guardian
Evaluate potential guardians: When deciding on a guardian for your children, consider who you trust to care for your children to raise them as you would want them to be raised. Consider the potential guardian’s values, stability (financial and emotional), as well as the practical reality of their own situations. Do they have children of their own? Are they in good health? Are they an appropriate age to raise young children?
Consider a separate guardian for finances: Consider whether the person you would want to raise your children is the same person you would want to manage the assets you have left for the benefit of your children. These do not necessarily have to be one in the same. In Maryland, there are two types of guardianship: guardian of the person and guardian of the property. The Guardian of the person is responsible for decisions such as healthcare, education, housing, food, and similar maintenance. Guardian of the property has a fiduciary obligation to manage assets for the minor.
Consider co-guardians: In Maryland, appointment of co-guardians is permitted. Consider whether you want to designate co-guardians. Also, consider if the co-guardians are married and how you would want to handle this should they become divorced.
Discuss with potential guardians: Before making a final decision, have an open and honest conversation with potential guardians about your expectations and their willingness to take on this role. Be sure to review the financial responsibilities, lifestyle choices, and any special medical or educational needs your child may have that the potential guardians need to be aware of.
Consider location: Keep in mind the location of potential guardians’ homes, schools, and other important factors that will affect your children’s lives. Will they have to move to a new town or city? Will they have to change schools?
Consider alternate guardians: If the primary guardian cannot fulfill their responsibilities, choosing alternate guardians is important to ensure your children are always cared for as you intended. If your first choice becomes unable or unavailable, don’t let your planning efforts go to waste. Name a backup to ensure that you select the guardian and not the Court.
Make a Will or Update your Existing Will: Once you have chosen a guardian, make sure to update your will to reflect your decision. Undertaking this process with competent counsel will ensure that your wishes can be effectuated through a valid estate plan.
Selecting a guardian is often the focus of estate planning for clients with minor children. Still, there are a number of other facets of estate planning to consider in addition to the above to ensure that your selected guardians are able to provide for your children in the ways you want. Learn more about the process by calling Maguire Law and scheduling a free thirty-minute consultation.
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