Despite the importance of a Will in estate planning documents, frequently people don’t complete one due to indecision about who is the best choice to become the guardian of their minor children. Ironically, this is probably one of the most important reasons to write a Will, this elimination of the possibility of a judge making that determination.
Guardianship lasts only until your child is of legal age, eighteen, although many children at that age are not ready to be emancipated. Guardians are in charge of the well-being, care, protection, and overseeing the day to day and lifetime responsibilities for their designated children. Guardians must make medical and social decisions, as well as all personal care and related decisions including educational assistance and financially related issues.
Guardianship of your children should not be confused with guardianship over assets. The mere fact that a person is appointed to be in charge of your children does not necessarily put him or her in charge of funds. Oftentimes, another person is delegated to share the financial responsibility for your children relative to investments, decisions as to distributions of principal, etc. The control of assets may be shared with either a person or a bank, based on the size of your estate and the complexity of the situation. For instance, if your child has disabilities and is receiving any governmental assistance, then he or she should have funds held in a trust for his or her lifetime at the sole discretion of the trustee, with special language so that governmental benefits will not be terminated by the receipt of funds.
When determining the most appropriate individuals to serve for your children in any capacity, it is very important to discuss the issues with the proposed guardians or trustees. Perhaps one doesn’t wish to serve, feels that he or she is too old, or has too many issues going on in his or her life, which would make it difficult to attend to the needs of your children. In such cases it is important for this person to be candid and express their unwillingness to serve.
It is also important to note that the designated person should not decide that he or she does not wish to serve at the time that they are called upon to assume the responsibility, as that will likely leave your children’s guardianship in the hands of the court for determination. Also, when naming guardians, in the event that an older person is being named, it should be remembered that the guardian will have to serve until the child is eighteen. Therefore, if that person is going to be relatively old when the child turns eighteen, then there should be a backup or contingent guardian named, in the event that the first-named guardian is unable to serve.
By: Hyman G. Darling, Esquire