No parent wants to think about being involved in an emergency situation where their child would require the care of someone else, however it is a critical question to ask.
“Who will take care of my child if I am unable to?”
A legal guardian is simply a person assigned responsibility of a child when the parent isn’t able to care for them or make decisions for them. A legal guardian will be legally responsible for the child in the case of a parent becoming unable to care for him or her due to death, illness, injury or even separation (abandonment).
A common misconception is that a family member will be able to take on this role, but that’s just not the case. If there isn’t someone specifically identified in writing, such as in a Will, the court system will decide who cares for your minor children, and that can include a next of kin, or a court appointed agent. This makes assigning a guardian of your minor children critical in your emergency pre-planning documents.
If you need help with any pre-planning arrangements, Fairmount would like to meet with you in a free session to help you get your documents in order, because it is vitally important to have your wishes documented.
How to assign a legal guardian
First: Choose the right person
The guardian you choose will become the parent in your place, potentially making decisions about your child’s health, school, religious beliefs, safety and more. When considering a guardian, keep in mind that each child can have a different guardian assigned, if that is in their best interest. Start with a list of who you would consider, or go through the questions and think of the person or people who would best fill that role.
Questions to determine a legal guardian in case of an emergency
Does this person love your child? How do they show that love? Will they consider the child’s best interest above their own?
Does this person have the financial means to care for your child? How will the handle the funds you leave to your child?
Is this person emotionally responsible enough to raise a child? Are they of age? Are they able to make mature decisions?
Does this person have the physical means to care for the child? Do they have a health concern or physical restrictions that would prevent them from providing quality care?
What is their living situation? Is their home able to accommodate children? Do they expect to move or do they live somewhere else and if so, how will that impact the children?
Do they already have children and will that help or hinder their care? How is their relationship with their partner? Are these relationships safe and stable?
How will this person treat relationships with my child’s friends and family members? Does my child already have a relationship with this person or would it be new to them?
Do we share the same beliefs on the things that are of highest importance to me? Do we have the same or similar parenting style and values?
Second: Ask questions of the potential guardian
Once you have narrowed down your list, contact the person or people you are considering and talk to them about it. Ask the potential guardian if they are able and willing to care for your child. Ask them about anything you are unclear on, such as their plans for children, relocation and beliefs. Ask them if they have a timeframe where they would not be willing or able to care for your children, such as their own age restrictions or the age of the children, or they may be willing to provide temporary care, but not long term care.
They may tell you no for many reasons, so don’t take it personal. They may already be overwhelmed parents, have potential guardianship responsibilities from others, or don’t feel they could do the ‘job’ for other reasons. Ask them if they would consider being an alternate.
Third: Assign the guardian(s)
You want to assign a guardian and an alternate for each child individually. There may be a time to assign two guardians per child, as in the case of a married couple where you want equal guardianship, however, most the time it is best to assign one. Co-guardianship situations can become complicated, especially if they don’t agree on what’s in the best interest of the child, or where financial matters are concerned.
Sometimes it makes sense to assign different guardians to your children, such as when they are part of different families as in the case of divorce. Or, the children may be closer to certain family members and not others. Sometimes it may make sense to have different family members care for your children if the guardian isn’t able to care for all the children and you know they will be cooperative with the guardians of the other children and/or it’s in the child(ren)’s best interest.
List the guardian and alternates in your Will and consult with a lawyer to make sure your wishes will be carried out. Certain laws may govern the assignment and eligibility of guardians, so you will want to be sure your chosen guardians are qualified. If you are married or co-parent, make sure you both list the same guardians to avoid confusion. If there are different guardians appointed and both parents die, the court will decide who gets custody based on their beliefs about what is best for the child(ren).
Fourth: Write a letter of explanation to accompany your choice of guardianship
This letter basically justifies why you chose the guardian. It likely will address the questions that prompted you to assign them in the first place. This can be important for the courts to understand what is important to you, in the case an alternate guardian needs to be assigned or if the guardianship is challenged by another person or family member. This is important especially in the case that the child is not to live with the surviving parent, or a blood relative.
The courts will take into consideration the child’s relationship to and the financial, emotional and physical stability of the person, as well as the child’s preference, when assigning a guardian when it is unclear who is assigned.
Finally, consider the finances
Think about whether or not the best provider for your child is also the best person to manage the finances. If not, consider assigning a trustee or custodian of your child’s inheritance.
“Many parents don’t leave money directly to their children. Instead, they leave everything to each other, with the understanding that the survivor will care for the children. They name their children as alternate beneficiaries. Many single parents, however, leave property directly to their children. Either way, you should arrange for someone to manage whatever property they may inherit, in case they receive it while they’re still too young to manage it themselves.” SOURCE: Leaving an Inheritance for Children
Pre-planning and protecting the things most important to you is critical, and yet can be an overwhelming process. Fairmount would like to meet you and begin your pre-planning process wherever you are in your life. Our Family Care Providers will meet with you in your home or in our private offices that look and feel like a living room. We want you to feel comfortable and cared for, just as thousands of Denver families have since 1890 at Fairmount. Give us a call today at 303-399-0692.