Six Common Mistakes Parents (and Their Lawyers Make) When Choosing or Changing Guardians

Laura K. Meier
Creating estate, business, and life plans that ensure a family’s complete protection and well-being.

Six Common Mistakes Parents (and Their Lawyers Make) When Choosing or Changing Guardians

 

I was driving with my son Jack (age 11) the other day to pick up some doughnuts when he randomly asked me who would take care of him if we passed away. This was right about the time we normally chat about whether we'll go with the cinnamon roll or the maple bar for his younger brother. When I asked him where he wanted to live, he said he didn't care, just as long as he didn't have to live with his little sister. I told him it doesn't work like that!

I am reminded though as my kids get older, the need to periodically evaluate the best fit for guardianship for them if we were to pass away. It's a tough decision for all us parents, even when you have a lot of great options to choose from. As a rule of thumb, we typically recommend parents choose a guardian for the next three years, and then re-evaluate as the kids continue to grow and their needs and lifestyle changes.

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Here are six common mistakes parents (and their lawyers make) when choosing or changing guardians.

Mistake One: Not Being Both Objective and Subjective When Picking Guardians

Think back to when you first fell in love with your spouse and decided to marry. It was probably both an emotional and logical decision. You knew you felt a deep love and emotional connection, but you also evaluated character, qualities, values, and what type of life you would build together.

Similarly, when it comes to choosing guardians for our kids, we should not only be thinking about who we love and their relationship with our child, but also be evaluating their qualities and values and the type of life they can actually provide for our child.

I remember talking with one couple who were at odds over guardianship. The wife wanted her parents, and the husband, who had been raised by his single mom, felt as though he would be deeply betraying his mom if he did not choose her as the permanent guardian. The husband’s emotions were really affecting his decision. And even though his mom would have been a great choice, I’m not sure he or his wife believed she would be the best choice.

His head was deeply conflicted with his heart. He said, I don’t want her to feel like she is losing something, mindful that she had experienced great loss in her past.

Many times our emotions and loyalty to those we love can overpower our decision making when choosing a permanent guardian. This is normal. But, keep in mind that you are not taking anything away from someone you love by choosing to make someone else a guardian. You are simply choosing to not add an additional role on top of the special role they already have in your child’s life.

If you stick with the easy three step process (which we go through when you design your estate plan) and make sure not to let your emotions disproportionately control your decision, you will be making both an emotional and a logical decision when choosing who is best for the permanent guardianship role.

Mistake Two: Not Naming an Heir and a Spare

Notice how most royal families have an “heir” and a “spare,” and that they never travel together? This is because if something happened to the first in line to the throne, they need to have a backup so the line will continue.We may not be royals, but there is something big we can learn from the heir and spare concept when it comes to setting up guardianship. You need to make sure you have designated backup guardians just in case your first choice for guardian can’t do it or declines to serve. I usually suggest couples list two backup guardians.

Mistake Three: Naming Couples without Conditions

Ideally, you would list a person or a couple and if something in their life changed or if something unexpectedly happened to them, you would just update your guardianship wishes. But this is not always feasible.

For example, what if you picked your mom and dad to serve as guardians, but your mom and you were killed in an accident together. Would you still want your dad alone, or would you rather have your sister, who was your second choice, for guardian? This needs to be made clear.

Or what if you picked your brother and sister-in-law, but they were no longer married at the time of your death? Do you still want both of them, or maybe just your brother alone, or neither at all? This needs to be made clear.

Maybe you really want your in-laws, but only if they will raise the kids in your hometown. This needs to be made clear.

Some attorneys will tell you not to name a couple at all in case one cannot serve or the couple divorced. This is easily remedied if when naming a couple, you also address your wishes for common circumstances, such as death or divorce, that could result in one or both of them not being able to serve.

I had a client before who, when asked about adding conditions for guardianship, said to me, “Well, I really want my friend, but can I make it a condition that she divorces her husband first?” No, but it opened up a great discussion on whether she really wants her kids to be raised in his home if she is so opposed to him being a guardian. Make sure you and your attorney talk through any unique conditions you face or requirements you have, and discuss whether you can or should legally include them when identifying a guardian.

Mistake Four: Having the Guardians Manage Your Children’s Money

Sometimes the person you choose to raise your child is also the best person to manage the money you left behind for them. But this is not always the case.

Raising children and managing money are different skills. Your spouse may be the most hands-on parent in the world, but may not be the best person when it comes to making investments. Or maybe your spouse is great at making money, but not so great at arranging the children’s birthday parties.

When you choose a couple to serve as guardian, hopefully between the two of them they are the best choice to raise the kids and manage the money. But what if they aren’t? Or, what if you are concerned about the fact that if your guardian is managing the money, there isn’t any additional outside oversight to ensure the money is being used in the best way for the children?

I like to assume the best about people and I’m sure you do too, but assigning your guardians to also manage the money is something that should not be done lightly. In many cases, it makes a lot of sense to leave the money management to a different family member or an outside professional or institution who is really good at doing just that—managing money.

Mistake Five: Not Excluding Guardians

One of the most difficult parts of my job is when I sit down with a couple to go over guardianship and discover why someone in the extended family is not being considered for guardianship. In some cases, the situation is so severe that we actually recommend that person be excluded from ever being considered as a guardian.

You may be wondering why someone you didn’t pick to be the guardian could end up being appointed by a judge, even when you’ve already identified several other people that you would want to serve as guardian.

This happens in the rare circumstance when guardianship is contested, the guardians you wanted declined or have died, or a judge concluded it was not in your child’s best interest to be placed with them. If that happens, you could end up in the same situation you were in before you named permanent guardians yourself. That is when a judge begins looking within the family to find a suitable permanent guardian for your children.In most states, judges give preference to your parents and your spouse’s parents, and would have to choose between them. If that is unsuccessful, they will start looking at your siblings or your spouse’s siblings. This is why it is imperative that, in addition to naming who you want to serve as your permanent guardian, you also exclude anyone in your family that you would never want a judge to consider, should the guardians of your choice not work out.

I recall sitting in my office with a couple, where the wife broke down in tears as she painfully explained to me why her mom should never be considered as the guardian of her children. I recall a husband apathetically reference his biological dad when asked if anyone should be excluded. He said something along the lines of, “Yeah, knowing him he’d show up for once if money was somehow involved.

These are sad situations, and my heart goes out to people who have to exclude a guardian. I also admire and am inspired by people, who despite their unfair upbringing, have gone on to enjoy healthy lives and create the family they always deserved.If someone in your family comes to mind as I talk about excluding guardians, there is a very delicate and confidential way to accomplish this. The excluded person would never find out unless the guardianship you had set up was contested and a judge had to start from scratch.

Mistake Six: Not Leaving Behind Instructions and Other Important Information

We’ve all heard the expression kids don’t come with an instruction manual. All of us parents have had to learn on the job. We’ve had to learn through others’ examples, and plenty of trial and error, how to meet our children’s needs and build a world for them.

Inheriting kids, though, is different. They’ve already had a life before being placed with you, and they have just come through something very traumatic. Obviously, parents should do everything possible in advance to ensure a successful transition. This is why you should have an instruction manual for raising your kids!

At our firm we call this document “Instructions to Guardians,” and it is a key way to ensure that your guardians understand your child’s needs, beliefs, and support systems, and your goals for that child. Believe me—your guardians would really appreciate some kind of guidance so they can raise your kids, honor your wishes, and make sure they are meeting what you have laid out as their emotional, physical, spiritual, and intellectual needs.

One of the big areas your instructions should address is what other relationships your child has that are important to them and that you want your guardians to help foster. For example, continuing to see grandparents may be on your list. You would think this is a no-brainer, but your guardians have their own lives too, and time gets tight, so it is good for your guardians to know exactly what was important to you. You don’t want to create a situation where your wishes are unclear, and suddenly relatives are turning to the court system to continue to have access to your children. Set your vision from the get-go so that before your guardians even consent to serving as guardians, they know what the expectations are.

Do You Need To Choose or Change Guardians?

I hope that you feel a huge step closer to designating the best permanent guardians for your kids. Let me encourage you to not leave your kids at risk one more day. Make a commitment with yourself and your spouse that you will make this decision right away. We are here to help!

For new clients, you can schedule a planning session to address all your estate planning needs by calling 949-718-0420 or you can click here to schedule a planning session online.

Existing clients are welcome to give Bonnie a call at 949-718-0420 to further discuss. We always love to hear from you.

We hope you are staying safe and well. We always love to hear what you are up to.Comment and  let us know how your July in quasi-quarantine is going! Any new fun games or binge worthy shows we should know about? We are always looking for new ideas!

Warmest regards,

Laura and Josh

p.s. To read more about choosing or changing guardians, you can click here to download a free copy of Laura Meier's #1 best-selling book, Good Parents Worry, Great Parents Plan.

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