By: James Filippi
If you are a parent, or a soon-to-be parent, you know the love we hold for our children is unlike anything else. There is nothing I wouldn’t do for my children and I’m willing to bet you feel the same as well. This article is for the parents out there wondering if they have done everything necessary to protect their children if the unthinkable would happen.
We all hope for the natural order of life. Meaning that we will live until old age while watching our children grow and have kids of their own. Unfortunately, tomorrow is never a guarantee and we all know that tragedy could strike at any time. In our final moments of life, the last thing we would want is to worry about who and how our young children will be cared for without their parents.
I recently had this conversation with a parent of young children in my Rocklin office and the concept of establishing guardianship succession had never crossed their mind. That isn’t all that uncommon, primarily for the reasons I just discussed, that we all wish for the natural order of life. My job as an estate planning attorney is to ensure you have thought of and planned for any of the possibilities life could have in store for us, and for our loved ones.
When I draft a comprehensive estate plan, there are a litany of questions I must answer. If you’re the parent of a minor child, or an adult child living with a disability, who will step into your shoes and care for your child? This is one of the most important of those questions. This is often a difficult question to answer because it requires you to think of a world your child could live in without you to be there for their needs. I completely understand this as a father of three minor children myself, but this is why I see establishing guardianship succession as one of the most important documents you can establish as a parent.
Let’s face it, if something were to happen to you, your children are going to suffer from the tragedy of your loss. They will look for their support system to help them through that very terrible experience. If you fail to plan guardianship succession for your kids, that very support system could fight among themselves to determine who will step into the parental role. This leaves your kids with the loss of the parents, and now with the loss of a support system that was supposed to be there to carry them through such an awful experience.
Guardianship succession sounds fancy, but it really is very basic. You will select a group of people, I always suggest at least three, who will serve in the role of guardian for your children. The succession part and the need for at least three is meant to plan for the possibility that the first person you chose is unable to serve in that role. Having a succession plan in place will make it so no matter what happens, there is a list of people who are willing to step in and take care of your kids.
Guardianship allows someone other than a parent to legally make decisions for a child. They take the role of a parent and accept the responsibilities that come with that. Selecting the right person for this role is critical because the only time they will serve, is if your child has experienced the trauma of losing a parent. They will have to carry your child through the worst life could throw at someone. Having the right touch for that is critical.
When you document your guardianship succession in your estate plan, and the unthinkable occurs, the court is likely going to appoint the person designated in your documents. However, there is always the possibility that such guardianship appointment could be contested, and for good reason. If you have designated someone who is later found to be abusive to children, they are probably not the best person to serve in that role, and thus the court would likely look to appoint another person.
The courts, when deciding on whom to appoint, will place a significant emphasis on the instructions left by the child’s parents. However, they also must do what is equitable, meaning what is best for the child, and that may not always match with your instructions. This is another reason having at least three people listed is a wise course of action when creating your guardianship succession.
Establishing your guardianship succession will help limit the possibility that your child’s support system is there for them when they need it most, rather than in court fighting each other. I hope none of us have to experience it, but if some tragedy were to strike, I don’t want those last moments to be filled with worry about who will care for my child. Providing this sense of comfort is what makes what I do special to me.
If you’re a parent of a minor child, or a child living with a disability, I strongly urge you establish your guardianship succession plan today. And if it has been a while since you have established one, this is a great time to revisit it.
Our firm can help you review or establish a guardianship succession as well as craft a comprehensive estate plan to put your mind at ease. Don’t wait because we never know what our next minute has in store for us.
