We. Made. It. To. 2021.
Celebrate, y’all. You survived one of the weirdest and most challenging years in recent history. And even though life still looks very different than “normal” (and likely will for a while), the release of the vaccine has many of us eager with hope.
Hope is BIG this time of year. Resolutions anyone?! Guess what? I’ve got a good one for you: get your estate plan together. (Haha--I totally caught you off guard with that one, didn’t I? . . . . Oh, I didn't? Pfft.)
Today, for the final installment of the three-part series about estate planning in the age of Covid-19, I’m talking about a toughie--guardianship planning.
Yikes. If you thought incapacity planning was tough to think about, and talk about, and plan for . . . guardianship planning may be even harder. In fact, I even procrastinated writing this blog because it’s such a hard topic.
If you’re a parent, then thinking about your children’s lives if something happens to you is a scary, scary thing. But it also, for most of us, is what drives our desire to begin this planning process in the first place.
You want to know that your rugrats--um, precious little ones--will be in good hands whether it’s during a short-term period of incapacity or whether you’ve passed away.
I’ve talked to a lot of friends about this, with 99% of my informal results coming in as this: “We’ve thought about it but haven’t done anything official.”
Oh, boy, do I get that.
My husband and I have two kids, an almost-7-year-old and a 3-year-old (see above for their darling faces!). And let me tell you, making the decisions about who would be responsible for our kiddos if something happened to us was not easy.
While everyone’s situation is unique, here are three big challenges that came up during our decision process--and that we’ve heard from other friends and family making similar decisions. (Stay tuned for a future blog post walking you through these topics!)
Uncertainty/Disagreement About Who To Pick
Worry About Those Who You Didn’t Pick
Concern About The Financial Responsibility
Is one of these holding you back?
Well, my friends, it’s time to move from thought to action.
“You cannot schedule an unexpected death.” Wow. I read these earlier this year in a NYT article about the importance of naming a legal guardian for your kids, and it has stuck with me. (It’s a good article. Check it out here!) But along those same lines, you can't schedule an unexpected illness or injury.
Any parent knows that children thrive on predictability and stability, and their world will already be rocked enough if the worst happens. While never easy, deciding in advance who will take care of your kids saves them a lot of additional turmoil, household switches, uncertainty, and so on.
While nominating a guardian is a compassionate choice for your children, it gives you peace of mind, too. YOU get to plan for this, instead of some judge somewhere who doesn’t know your kids as intimately as you do. They don’t have the time to get to know your kids. YOU already do. You are the best person (often with your partner!) to make this tough decision in the best interests of your children.
Throughout this pandemic, unfortunately, we've seen over 365,000 deaths (a number MUCH higher than the one I quoted when I started this blog series) from Covid alone. Parents--sometimes both parents--gone in the span of only days or weeks, or parents hospitalized and incapacitated while they fight this illness. While many acknowledge that guardianship planning is always a good idea, the pandemic provides a stark reminder of why this is crucial.
Before we get any further, let’s talk about some of the terms I’m using here.
The probate court is the court that determines who takes care of your children and their assets. It is the same court that handles wills and estates (more on that below).
A guardianship is a legal proceeding where an individual (or two) is appointed to take care of your child (their day-to-day care, health and welfare, education, etc.). The person appointed is the guardian; the child is the ward.
A conservatorship is a legal proceeding in which the court appoints someone to manage your child’s finances and legal decisions. The person appointed is the conservator; the child is the ward.
Sometimes one person handles both of these roles; sometimes a child has a separate guardian and conservator. When you have an estate plan, you get to express a preference for both who is selected and whether these roles are held by the same person. If you do not have an estate plan, the court will step in to decide who has these roles and whether they are joint or separate.
Quick note--guardianship and conservatorship can also apply to adults (disabled, incapacitated elderly, etc.). As you may have noticed, though, for the purposes of today’s blog I’m focusing exclusively on minor children.
Don't worry; it's really not as complicated as it seems. And besides, I'm here to help!
In your will, you can (and SHOULD!) nominate at least one individual to take care of your children.
Even though they must be appointed by the court to make it official, when you have a properly executed will, the court places an extraordinary amount of trust in your judgment (i.e., telling your best friend she’s your child’s guardian is not sufficient). As long as the person you name is qualified, the court will strongly consider and usually appoint that individual.
But what about if you are sick and unable to care for your children? You may appoint an individual to act as Emergency Guardian in your Power of Attorney. While similar to nominating a guardian in a will, this document lets you nominate a temporary guardian for the duration of your illness, injury, or other incapacity--so no one needs to go to court for permission to care for your children in this kind of emergency.
One last point: It is highly unlikely that a permanent guardian will be needed.
While it’s important to plan ahead and prepare for the unexpected, it’s comforting (to me at least!) to acknowledge that it is RARE that both parents will die before their children become adults. [That said, single parents or those with significant health concerns, this is even MORE crucial for you!] But neglecting this task because it's unlikely isn't the wisest course of action. Trust me, you'll feel heaps of relief once this task is off your plate.
It’s also worth acknowledging that this is not carved in stone for all time. Wills can be changed (though it does need to be done properly to be effective!).
There are many life events that should lead you to review (and maybe revise) your existing will: a divorce or death, the birth or adoption of a new child, changes in the circumstances of your named guardian/conservator, the discovery of special needs for your children, and so on. Regardless of any big changes, it is important to periodically review your estate plans to make sure they still do what you want them to.
As a reminder, you don’t need to have this all nailed down to get started with me. Let’s chat, and I’ll ask questions to guide you through these decisions (think of me like an estate planning therapist, of sorts).
Set up a free consultation so we can chat about the little ones in your life and come up with a plan to put your thoughts into a concrete (legally enforceable) plan to protect your kiddos.
I hope you enjoyed this series! Stay tuned to our blog to learn more about estate planning, such as helpful terms, strategies to get started, and all about asset planning for your 12-bedroom mansion and 6-carat diamonds (or, you know, your 2-bedroom condo and hand-me-down couch).
Wanna check out the other parts in the Planning During the Pandemic series? Find them here:
Part 3: Guardianship Planning (This Post)