You just had a baby, and you’re striving to be the perfect parent. In addition to seeking advice from your pediatrician, you should probably also be consulting an attorney.
One of the most important steps parents can take, say legal experts, is to name a guardian who’s willing and able to take over the job of raising their child should accident or illness claim their lives, or completely incapacitate them.
Odds are such a calamity will never occur. But the improbability that your child will ever need a guardian, coupled with the natural human tendency to avoid contemplating death, puts the task toward the bottom of the priority list.
“We did it (assign a guardian) the first time we went on a trip away from the kids,” says Jane Doyle, a Northbrook mother of five.
Indeed, estate planning attorneys say, it’s often when parents make airline reservations and worry about the possibility of an accident that they finally draw up a will and specify a guardian.
Ideally, says James Colliton, professor at the DePaul University College of Law, parents should make plans for their replacement early on, when their child is an infant. After that, they should review their plans each time they have an additional child, or face other significant changes in their lives or financial affairs.
Since many of us view parenting as our most challenging role, it can be difficult selecting a competent understudy. But parents who neglect to assign a guardian leave that choice up to a court if guardianship becomes a necessity.
Usually, notes Judge Henry Budzinski, presiding judge of the probate division of the Circuit Court of Cook County, a family member steps forward asking for the job, and then the court must approve him. Sometimes, though, conflicts arise when two or more family members vie for the task. What’s more, parents who don’t direct who can control the money that their minor children will inherit allow a court to supervise those funds, a situation that may pose problems.
Here are some guidelines on selecting an appropriate guardian, and how to make the choice legal:
– Whom to choose. The State of Illinois requires that anyone you select as a guardian be at least 18, not a felon, a resident of the U.S. and not disabled, notes Arlington Heights estate planning attorney Thomas Mann. Undoubtedly, you’ll want to make your selection using more stringent criteria. You’ll want to consider whether a person or couple would have a compatible parenting style with your own, whether they’re in good health and whether they have the willingness to take your child or children in.
“There were a few factors we considered,” shares Doyle. “One was religion. We definitely didn’t want them to go to a family that didn’t follow their faith.” Other considerations were whether a couple seemed to have an intact marriage, and whether or not taking on the five Doyle children would pose a financial burden.
Jane Doyle chose her sister as guardian, and her sister has also asked her to serve as guardian for her children.
Selecting a sibling is typical, says Mann. “Most of my clients choose a brother or a sister,” he says. “Grandparents are an option, but most people don’t choose them because they fear they are too old to have the energy to raise the kids, or that they might die and the kids will need another guardian.”
Family members are the usual choice, with a parent’s sibling the most popular selection, but there’s no requirement that a guardian be a relative. “Usually, you look to family, but if you don’t have anyone, you can consider friends,” notes Evanston attorney Pauline G. Dembicki.
Of course, asking someone to take on your children–even though the possibility is remote they will actually do so–is no small favor. Mann suggests that you make your request to the person you select and then ask him to get back to you with an answer. “If he takes the initiative and responds favorably, he is probably serious about doing it.”
– Who takes care of the money? Someone may be able to provide just the right nurturing environment for your kids, but not be able to properly manage the money that your children will inherit from any life insurance policies or other assets you hold.
When assigning a guardian, some parents split the task, notes Mann, naming one party a “guardian of the person,” or responsible for the day-to-day care of the child or children. Another party is named as a financial guardian, or overseer of how funds the children inherit are to be spent.
“In some cases it is advisable to have someone with financial expertise manage the money and have someone else take care of the child,” notes Colliton. “But then you could run into problems such as the guardian wanting to send the child to an expensive school and the person in charge of the money saying no to things like that.”
A financial guardian, or trustee, can also be named to work in conjunction with a trust company or bank, notes Mann, although these entities charge a annual fee for administering the funds.
Without naming a financial guardian or a trustee, however, a court will oversee how money left to minors (children under age 18) is spent. If you don’t appoint a guardian of your children’s inheritance, the court will do so, notes Susan McMahon, director of consumer advocacy and in-house counsel for the Ray Graham Association in Downers Grove, which provides services for disabled people. “Then, on an annual basis, the person whom the court has appointed must report on exactly how the money is spent.
– Making it legal. You’ll need to name the guardian(s) in a will, a document that is then witnessed, signed and notarized. Usually, a will is a rather straightforward document and is relatively simple for an attorney to prepare, says Colliton, and should cost just a few hundred dollars. The will specifies a guardian for the actual care of the child, and should also name a trustee or guardian of the money you leave your children. If a parent has substantial assets, however, or there are special circumstances in the family, such as a disabled child who’ll need long-term care, then a more elaborate trust document may be necessary.
Establishing a trust, however, isn’t just for the wealthy. “Most of my clients do a trust as part of their will,” says Mann. “It’s called a testamentary trust, which means that it holds assets on behalf of another person.” Such a trust, which would hold funds that the children will inherit, would be monitored by the trustee that the parents ordain. Again, this setup is a common feature of many wills, and is not expensive for an attorney to prepare. “I usually quote my clients a fee that includes all of the documents, and it usually runs from $300 to $500,” says Mann.
