Guardianship in Estate Planning
One of the most important topics in the estate planning world is that of guardianship. Guardianship is important on two levels: it protects your children should you die before they reach the legal age of adulthood, and it ensures that your children are brought up and cared for by the person of your choosing. Some people may appoint the Executor of their estate as the guardian of their child(ren), but the roles are different – and as such, you can choose whomever you wish for each.
Why do I need to name a guardian in my Will?
If you fail to name a guardian for your minor children, and you die before they reach legal adulthood, the court will name a guardian for them, or they could be placed into foster care. Understand that if there is no legally binding document, any verbal agreement you have with a family member or even a friend will not necessarily hold up in court. If, for example, you want your sister to take the children in the event of your death, but your spouse’s brother wants to care for your kids, the courts may not side with your sister unless you have documentation naming her the guardian.
One final note: in Tennessee, a child over the age of 16 may be allowed to change his or her guardian.
Tips for choosing the right person as guardian
There’s no set formula for choosing the right person as guardian for your children. There are, however, things you should take into consideration when building your list of options:
- Parenting styles or lifestyle, if dissimilar to your own.
- The physical distance between your chosen guardian’s home and your current home.
- Are your children comfortable with your choices right now?
- Are your choices emotionally prepared to take on such an overwhelming responsibility?
- Do the people you’re considering have the time in their schedule to raise your children?
- Would your child be able to assimilate into a new family easily?
- The ages of both your potential guardians and your children.
- Whether or not your choice actually WANTS to raise your children.
Looking at the financial aspect of guardianship in your estate plan
When it comes to money, you will want to ensure the guardian of your children does not have to struggle to raise them if you die before they reach adulthood. At the same time, the lack of financial assets on the part of the guardian should not affect your decision. When you plan for the care of your child, make sure your child is named as the beneficiary of any insurance policies you have, as well as any assets that remain from the estate once your debts are settled.
If you have a substantial amount of money to your name, the Executor of the estate could be responsible for managing this money on the behalf of the child unless:
- You set up a trust for their funds, in which case you may need a separate trust administrator; or,
- Your child’s money is given directly to the guardian (though we would not recommend this option).
A quick note about conservatorships
While we have spent most of our time discussing minor children, if you are a guardian to an incapacitated adult, or a child with disabilities, he or she will also need to have a new guardian named. In this case, a guardian may have control over your child’s personal affairs – but not his or her money. A conservator is a person who handles the financials of your adult child. You can name the same person to both roles. You can also choose just to name a conservator, if your child is capable of caring for him or herself.
Do you have questions about your estate, will, or how you should choose a guardian? It’s important to discuss these issues with an experienced estate planning attorney. Shepherd & Long, PC has decades of experience proudly representing clients throughout Eastern Tennessee regarding matters involving wills, trusts, guardianship and more. Call our Maryville office at 865-982-8060 or complete the contact form on our website to schedule your consultation today.