While it may be upsetting to consider your own mortality, if you have minor children, it is especially important to plan for their protection and well-being. It is unimaginable to have to consider this unlikely scenario, however, if both parents have died without naming testamentary guardians, guardianship is at the mercy of the probate court. Here are some important considerations:
- When naming a guardian for your minor child, the most important consideration is that you put something into place as soon as possible. Your designated guardians may not be perfect, but guardianship is an unlikely and unexpected scenario. You are certainly in a better position to name a guardian for your child than the probate court is. Probate Court guardianship proceedings take time and are often highly contested.
- It is important to name both temporary and permanent guardians. A temporary guardian can be put into effect immediately, when needed for sudden and unexpected life events (your death, physical debilitation, mental incapacity, absence from state, imprisonment, vacation, etc.).
- Naming a particular guardian is not permanent. As circumstances change, your plan can and should be amended.
- Your plan can contain contingencies. For example, you can name a sibling to act as guardian if he has reached a certain age. You can name a couple as guardian provided they remain married or remain living in a certain geographic location. You can name grandparents provided they are under a certain age. Your plan can be flexible.
- Create a deep bench. Plan for the unexpected, and nominate a lineup of guardians should the initial guardian be unable or unwilling to serve.
- Prepare a detailed memo that your guardian can rely on as an instruction manual for parenting. This can provide parents great comfort, and provide the guardian with welcome guidelines for your child’s care.
- You can appoint a guardian of the person (to manage and make decisions regarding your child’s education, housing, care, maintenance, etc.) and a guardian of the estate (to manage your child’s finances). This does not have to be the same person. Some parents choose to use the same person, and some prefer to bifurcate duties.
Having a detailed estate plan with instructions for the appointed caregiver is critical. Even with an estate plan, the probate court will need to approve of the designated guardian, however, great deference is given to the parents’ choice of guardians.
Temporary Guardianship vs. Permanent Guardianship
Beyond naming permanent guardians, it is important to name a standby guardian who can swoop in without court involvement to handle the immediate affairs and care for the child in the interim pending probate court approval of a permanent guardian.
Temporary standby guardianship can be put into effect immediately, when needed for the contingencies specified by the parents, including upon:
- Death of the parents
- Parents’ physical debilitation (accident, illness)
- Parents’ mental incapacity
- Absence or unavailability of parents for any reason (vacation or travel by the parent, or if the parent cannot accompany the child on a school or sports trip)
- Standby guardianship does not terminate the parental guardianship and the parents can revoke the guardianship at any time.
Every thorough estate plan should include both permanent and temporary guardians for minor children. Don’t leave these important decisions to the discretion of the probate court.