Parents with young child
Parents with young child

When we think of “estate planning,” our first thought typically involves directions for our property after we are deceased. But did you know your estate plan can include legal directions for the care of your minor children?


In the unfortunate and unlikely event that minor children (under 18 years of age) lose their parents, and those parents do not have proper guardianship documents in place, the courts will be in charge of deciding the parents’ legal successors.



This presents a number of issues. First, the individuals appointed by the court as the children’s guardians might not be the parents’ first choices. Second, failing to have temporary emergency guardianship papers leaves children at risk of your state’s child protective services agency intervening for the children’s temporary custody before they are placed with family or relatives.



To avoid these issues, we suggest including two documents in your estate planning:




  • a



    temporary emergency



    guardianship document and



  • a




    permanent



    guardianship document.



The temporary emergency guardianship designates who is legally authorized for the temporary legal custody of your children in the event neither parent is alive or able to function as a parent. This document is vital for avoiding confusion at schools or day care centers, which will resort to state child protective services in the event no legally designated person is present for their care. This document generally consists of a list of friends and family whom you trust to watch your children for a few days or weeks until the permanent guardians can assume their role.



The second and more vital document is the permanent guardianship document, which designates who ultimately has priority for legal custody and care of your children. Typically, parents choose to designate the children’s grandparents or other family members – single or married – as potential permanent guardians, but they can also choose good friends or other non-relatives. When the guardianship document is executed, the guardians assume all of the legal responsibilities (custodial, medical, educational, religious, etc.) of the children as a parent would.



We are often asked whether guardians have to adopt the children. The answer is “no”; the only reason a guardian would take the additional step of adopting a child is if the guardian wants to place that child into a priority position for inheritance purposes. Otherwise, guardians may choose to keep the children’s inheritance separate from that of their own children.



On a related note, the final consideration for parents is how to manage the inheritance of their minor children after the parents are deceased. While the guardians make all of the financial decisions for the children, including the management of the children’s financial property, it can be wise to have a separate person designated for the management of the children’s inheritance of your estate.



The best way to accomplish that goal is to pass on your minor children’s inheritance in trust and appoint a trustee to manage the children’s inheritance. While the guardian may be the same person as the trustee, it is wise to appoint a separate person as trustee to appropriately invest and distribute funds to your children – ideally someone who is good with money.



While it is an unhappy topic to consider, having guardian designations in place will help ensure that, in any scenario, your children will be in good hands.