How to Choose a Guardian

One of the most important decisions for many of my clients is the selection of a guardian for their minor children. There are many factors that should be considered when appointing a guardian.

First, I recommend that families think broadly about all of the available people who could be guardians. It often helps to think like a court would think: Who are the children related to? Grandparents? Aunts and uncles? Adult siblings? Then broaden the circle and look to your friends and neighbors. 

At this stage, I also recommend thinking about two different sets of potential guardians: the first are "permanent" guardians, who would have custody of your minor children if you pass away or are permanently incapacitated; the second are temporary guardians who could assume custody of your children during any temporary period of incapacitation. Imagine that you are in a serious car accident on date night. Both you and your partner are rushed into surgery. While you are in serious care and likely to survive, someone else will need to watch your children that night and perhaps for a few nights. Unless you have directions about who is authorized to take custody of your children in your wallet, the hospital social worker may be scrambling to find someone -- especially if your family lives out of state. A list of neighbors or local friends who are willing and able to temporarily care for your children in an emergency is a critical part of your guardianship planning. 

Now that you have two lists, the next step is to consider what values are most important to you for each group. For permanent guardians, some of my clients prioritize familiarity with the children and genetic closeness. Others prioritize the age of the guardians, their religious beliefs, and their financial resources. I highly recommend discussing this list with your co-parent, as many disagreements as to whom the best candidates are can be alleviated by focusing on which values you want to prioritize together for your children. 

Third, compare your first list to your value set. Some clients even create a grid where they can objectively compare which possible guardians meet all of the values and which do not. Once you have applied your values to your list of all possible guardians, and after discussing with your co-parent, you can select your guardians for both permanent and temporary appointment. 

And then you can select your second and third choices. While you may be certain that the first person you list will agree to serve, unexpected circumstances can arise between now and when the appointment would take effect. The people you nominate always have the option to decline should the agreement need to be in effect.

To that end, when you think about your back-up guardians, also consider whether you want to nominate an individual rather than a couple. While many of my clients name married couples as guardians, this can pose a problem if the couple should divorce or if one partner dies before the the guardianship begins. Do you only want the couple to serve as guardian jointly? If so, be sure that your intent is clear in your appointing documents. 

One last piece of advice: it is always a good idea to talk to your potential guardians before naming them. Let them know why you would like to name them and what's most important to you in raising your children. Be sure to discuss any concerns they might have, and discuss these with your attorney. Guardians may be hesitant for financial reasons, and knowing that there will be a minor trust for your estate and how that can be used may ease their concerns. 

But more about that another day. 

 

Durable Powers of Attorney

A Durable Power of Attorney is a document that appoints someone (usually not an attorney) as your representative in the event that you are incapacitated or unavailable. There are two common types: for health care and for finances. 

A Durable Power of Attorney for health care appoints someone to make health care decisions for you when you are incapacitated. These typically take effect when you are found to be incapacitated. Under Washington State law, your spouse is the default decision-maker, but sometimes your spouse isn't available or the hospital has doubts about your legal relationship. What's the easiest way to provide clarity? And who is your back-up? In one document, you can appoint your spouse as the first choice and name 1-2 back-up people. I highly recommend talking with the people you appoint about what's important to you in your health care decisions, and making sure that each of them knows where a signed copy of your Power of Attorney for health care can be found, should it be needed. 

A Durable Power of Attorney for financial decisions is also important. If you are incapacitated or unavailable, would your spouse have access to all of your bank accounts? Brokerage accounts? Emergency funds? This can be effective immediately, rather than requiring incapacity, which can be useful if one spouse travels frequently or may simply be unavailable. It is increasingly common for married couples to maintain one or more bank or credit accounts in their separate name, but to pool resources jointly. If you or your spouse is suddenly unavailable, would the mortgage still get paid without access to those separate accounts? If not, and if you want to maintain your separate accounts, a Durable Power of Attorney could be the back-up plan answer. 

What's the difference between an will and an estate plan?

I am often asked if I can help with a will, and I always respond that I can assist with your estate plan. Why do I do that?

A will is a document that details what your assets are and who should inherit them, and who should be in charge of settling your debts and distributing any remaining assets. It is part of an estate plan.

An estate plan, by contrast, also includes Durable Powers of Attorney for health care and finances, and, if you are a parents, the appointment of a guardian for your minor child(ren), and possibly a trust to manage any assets they would inherit from you. Sometimes it also includes Advance Directives (also called a "Living Will") which addresses end-of-life decisions. The exact documents that you need will depend on your life situation -- your age, marital status, assets and liabilities, children (and their ages), and what you want to accomplish with your plan. 

As such, when we meet to talk about your estate plan, we will talk about more than just who will inherit your assets. We will also talk about who you want to make end-of-life decisions for you if you incapacitated, and what your family will need to move forward after you pass. 

Also, your estate plan should need to be updated every few years, depending on your life circumstances. The plan we create while your kids are in grade school should be very different from the one we create when you have grandchildren. I follow-up with past clients every three years to review their plans. Sometimes they are still accurate; often, there are small changes that we need to make -- for example, if you buy a new home, get divorced or married, have another child, or any myriad of other circumstances. It is not unusual to rewrite your whole plan every decade, which will give you the peace of mind that the plan you have will work for you should the unthinkable happen tomorrow.