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Certainty in the Face of Untimely Death: Guidance on Naming a Guardian

By Sarah Baker

March 27, 2018

 I regularly hear the following excuse regarding why parents of minor children have not completed their estate planning: an inability to decide on who will act as the guardian of their minor children in the event of the parents' untimely death.  While there are numerous reasons parents should plan for the possibility of death, designating their children’s future caregiver(s) should rank high on that list. The purpose of this blog post is to assist parents in the decision-making process in order to provide certainty for themselves and their loved ones.

WHO SHOULD PARENTS CHOOSE?

 Choosing a guardian for minor children is obviously very personal. I do find, however, that parents often benefit from considering the following questions:

 1. With whom do the children maintain the closest relationship?

 Parents should consider who knows their children best (e.g., what their children like to eat, what the children’s daily routine looks like, what comforts the children in times of distress and where the children are at in their educational journey). In the event a guardian is required to act, the children will be dealing with grief and significant change. Limiting this change by selecting a guardian that knows and understands the children will help the children through some of their most difficult times.

 2. Who is capable of taking on [insert applicable number of] children?

 Grandparents are often an initial consideration, as they have a tendency to maintain close relationships with children. However, grandparents are statistically bound to predecease parents and often have medical issues and physical limitations that can make it extremely difficult to keep up with a grandchild, let alone two, three, or more grandchildren, particularly if any of those grandchildren have special needs.  In addition, if both sets of grandparents are involved, it can be difficult to select between them. Given the statistical likelihood they will never serve in this role, selecting between two loving sets of grandparents may not be worth the time, effort and discourse associated with making such a decision. Parents’ siblings can be a great choice, but can also be difficult to choose between and often do not reside in the same community.  Close friends with similar familial values are another option—particularly as children become older and more self-sufficient. It is important for parents to keep decision making focused on the best interest of their children, as opposed to getting caught up in how a certain choice may affect others’ feelings. 

 Raising children can be extremely expensive. Many parents have not considered obtaining life insurance for the purpose of raising children in the event of untimely death. However, being able to tell a potential guardian that children will come with a nest egg to assist with the inevitable expense of raising them can provide a sense of relief, generate more positive feelings about taking on such a role and alleviate any guilt that may be associated with requesting a non-family member fulfill this role.

  1. With whom will the children’s daily lives be least disrupted?

 This may depend on the children’s current stage of life. If the children are infants/toddlers, it may be no big deal to send them to live in a different state across the country.  If the children are teenagers, it could be extremely disruptive to move them away from their friends and support networks. These inevitable changes in life circumstances are why I recommend clients re-visit their estate planning every three to five years. It may be that no changes need made, but it is more often the case that clients wish to update one or two things, including their designated guardian—which can be changed at any time.

 The best way to avoid posthumous conflict is to communicate now about the roles loved ones will fill upon death. When parents engage in a reasoned selection process, it is often easier than one might think to explain why a given loved one was not selected as a guardian (e.g., the individual already has three children and taking on six appeared burdensome, the individual is likely to predecease the parents, the individual resides in a different state that would require the children to be uprooted from their current community, etc.). These understandable explanations cannot be provided after death—at least not in person. Giving people who are not selected an opportunity to deal with their feelings of disappointment during your lifetime may very well salvage their relationship with the children if the parents die unexpectedly.

HOW CAN ESTATE PLANNING MAKE THE TRANSITION EASIER ON EVERYONE?

 It is important for parents to understand that simply naming a guardian in a Will or Power of Attorney does not guarantee the named individual will agree to serve in that role.  Therefore, while not the most pleasant of conversations, it is imperative that parents ask the named individual if he or she is willing to care for the children in the event of death. This conversation is not something to be ignored or taken lightly, as it will inevitably involve topics considered inappropriate for Thanksgiving dinner, such as money, religion and familial values rooted in political beliefs—but constitutes an opportunity to help a future guardian understand parents’ expectations. If the answer is no, it is important to know now, as opposed to putting love ones in an awkward position upon your death. No one wants their children to face that kind of uncertainty at the same time they are dealing with the loss of their parents. Alternatively, knowing the selected guardian is willing to accept the role will provide peace of mind and comfort that a plan exists. In addition, the decision of who will care for the children will not be left to the discretion of a judge you may not know.

 In the absence of estate planning documents designating a guardian, anyone may step forward to petition the court for guardianship of your children. Furthermore, Ohio courts are without jurisdiction to appoint a guardian that resides out of state unless that person is named in a legally sufficient writing (i.e., estate planning documents). It may appear natural to parents that a particular family member will step forward to petition the court; it is important to consider however that multiple family members may step forward—causing angst among those family members and forcing the court to decide between loved ones.  Even the most harmonious families can end up in heated disputes over children—sometimes because certain individuals believe they are best suited to raise the kids, sometimes because the children are reminders of lost loved ones, and sometimes because loved ones believe it is what the parents desired.  Such a situation can divide a family when dealing with the grief associated with the parents’ untimely death, leaving the children to suffer the consequences.

 In summary, a combination of thoughtful estate planning and good communication can best assist loved ones (including children) to transition smoothly in the event of the untimely death of parents. If you need to complete your estate planning and want advice about what would be best for your family’s circumstances, please do not hesitate to contact Sarah Baker at sarahbaker@ccj.com or 330-264-4444. Sarah is a member on the estate planning team at Critchfield, Critchfield and Johnston. She received her J.D. from The Ohio State University and has a master’s degree in Psychology from the University of Akron.

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