When you’ve practiced estate planning for a number of years, some general trends among your clients become apparent. In my experience Millenials and even so-called “Zoomers” are more proactive in creating their estate plans than their parents and grandparents. I have some vague theories to explain this tendency, but it seems to be a fairly accurate generalization.
Typically young clients get in contact with me shortly after they get married, or before or after having their first child. While they usually don’t have a lot of assets, and their assets are constantly changing, one of their foremost concerns is the care of their children in the event of a mutual disaster, or in the event that their surviving spouse is incapacitated.
Two things are important when considering a plan to protect a child: (1) financial protection both from the child and from any party charged with the care of that child; (2) choosing your child’s guardian. The first consideration warrants another three or four blog posts entirely, but the careful consideration of the latter can go a long way toward solving the former.
In the event that you and your spouse are unable to care for your children, the probate court will appoint a guardian. In the absence of any planning, the court has wide discretion to appoint any person as guardian who is related to the minor within the fifth degree by marriage, blood, or adoption. If your child is over 14 years old, they can choose their guardian so long as the court determines that the child’s choice isn’t contrary to their well-being. If a parent nominates a guardian, that nomination controls unless the nominee declines the appointment or the child is old enough to make the nomination. Here are some tips to keep in mind when selecting the guardian for your child:
- Make the nomination of your guardian known in your Will, Trust, Durable Power of Attorney, and Patient Advocate Designation. Too many families and attorneys leave this important step out of their estate plan. Courts will rely on this nomination in appointing a guardian for your children. A nominated guardian has priority for appointment over any other individual. Only clear and convincing evidence of unfitness can disqualify a nominated guardian from the court’s consideration for appointment. Different chapters of the Estate and Protected Individuals Code and the Mental Health Code for developmentally disabled children provide that nominations under different documents control who has priority for appointment depending upon court procedure. To make your nomination consistent and ensure it controls, make the nomination the same in every document of your estate plan. Moreover, a consistent statement of your intent makes your intention clear to the court.
- If there’s someone you don’t want to care for your child, make an anti-nomination in your estate plan. When it comes to your child’s well-being, the hurt feelings of family members should not take precedence. Just as it’s unwise to give certain people portions of your estate, it might be unwise to entrust your children to certain relatives. If that describes your situation, bar those relatives from consideration and appointment as guardian in your estate planning documents. Additionally, in the event that your child is over 14 and makes a nomination that might not be in their best interest (their “cool” uncle for example), your anti-nomination can alert the court as to that person’s unsuitability.
- Nominate multiple individuals and couples. Ideally you revisit your estate plan at regular intervals to adapt to changing circumstances. I usually recommend every 3-5 years. However the circumstances of your nominated guardians could change in the interim, and they may not be willing or able to care for your children. Nominating a series of 3-4 individuals or couples in cascading order of priority helps to ensure that someone you choose who is willing and able can care for your children.
- Consider dividing the roles of who takes care of your children. Taking care of children is a hard job. Perhaps you have a sister who is wonderful with caring for children, but horrible at managing finances. Perhaps your brother has a CPA, but all his furniture is the palest shade of white and he prefers the company of cats to people. Maybe your parents are the model of doting and proud grandparents, but don’t have the energy to take care of your children full-time. Thanks to our flexible probate code, and with some creative estate planning, you can bifurcate these roles so that your sister doesn’t have to worry about going broke, your brother’s furniture stays immaculate, and your parents can provide some relief for your sister when it’s needed.
- There are practical considerations for selecting a guardian. In the situations where this part of your estate plan comes into play, your child will need time and room to grieve and adapt to a new life. It’s best to minimize disruption to their current living environment. All things being equal, I would select a guardian who is closer to your current home than one who is further away. Hopefully you’ve done some planning with your retirement accounts, have sufficient life insurance, and developed an estate plan that protects your child’s financial well-being, but choosing a guardian with an equivalent-level of socio-economic resources as their parents will help with that adjustment. This does not mean that the wealthiest guardian would be the best choice. A “culture shock” either way on the socio-economic ladder won’t help your child adjust. Additionally, choose a guardian who has actually expressed a level of interest in your child. Do they visit you often? Do they send your child holiday cards and gifts? Do they go to your child’s extra-curricular activities? If so, then they might be good candidates. Finally, temperament is also a pertinent consideration. You will want to choose someone who is similar to you, who has a similar view to caring for a child. In making this decision, most people are choosing between their siblings and their spouse’s siblings. Speaking in broad generalizations (there are many exceptions), eldest children tend to be the most organized, while younger siblings may be prone to disorder. On the other hand, eldest children also have the tendency to be controlling to the point of detriment (just ask any attorney who administers trusts), while youngest children tend to be the most laid-back. The middle child tends to be the most doting on their parents and children, which is a great quality, but they can be prone to insecurity.
- Ask your potential guardians whether they would be willing and able to serve as guardian for your children and tell them of their nomination. A nomination in your estate plan of someone who isn’t willing or able to serve is less than worthless. Now the court will have to notice that person and they will have to formally decline the nomination, which might delay proceedings. It might be uncomfortable to talk about this with other people, but I find that most people are pretty open to the idea.
Ultimately, you know your family and friends best, and only you can make this important decision. However, as you can see, there’s a lot of aspects to consider when making this decision, it’s not just a simple act of jotting some names on a form. If you’re ready to craft a plan to protect your children, contact me to set up a complimentary initial consultation.