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5 Guardianship Mistakes that Could Put Your Kids at Risk

Posted by Neil Tyra | Nov 01, 2019 | 0 Comments

In this blog post, we are going to dive into some uncomfortable topics. Before we begin, I want you to know two things: 1) You have already taken the first step. By clicking on this blog post, or by starting to consider guardianship issues for your minor children, you are already on your way to protecting your children. 2) Everything I highlight in this blog post today is a mistake that is easily rectifiable. If anything in this blog post catches your eye or makes you a little nervous, let's talk about it. Guardianship is an important decision that should be carefully considered; however, once you've decided who to nominate, we can get your guardianship designations done in no time.

Guardianship is the Single Most Important Part of Your Estate Plan

As a parent, you are extremely careful about who you allow to care for your child. You meticulously vet babysitters and nannies. You go to Back to School nights and make sure you've met their teachers. You meet all friends' parents and cub scout troop leaders and camp counselors. Why? Because you care about your children, and you want to make sure that the adults who are looking after them are qualified, responsible, capable individuals.

Now comes the uncomfortable part, who will look after your children if you are gone? If the child has another parent, they may be the obvious choice. But what if both parents are no longer able to provide care? What then? It can be painful to push ourselves to imagine a life for our children without us in it. However, it's an important exercise to do now, before anything happens.

I don't like encouraging my clients to imagine worst-case-scenarios, and I am not the kind of lawyer who thrives on striking fear into the hearts of others. But, I have seen guardianship matters become all-too-real for far-too-many. Whether you are temporarily or permanently unable to care for your child, you need to have a legally-enforceable plan in place to make sure that your little ones are protected.

Guardianship is provided in the Last Will and Testament. That's handy because it doesn't require an additional document (except the temporary guardianship, which we will cover later on). You simply designate who you wish to care for your children if you and any other parent is unable to do so right there in the Will. Although guardianship is a relatively straight-forward designation to make in a Will, I have seen it go so wrong. That's why I put together this little list of the five mistakes I see parents make when designating guardians.

The Biggest Mistake of All

Of course, the biggest guardianship mistake parents can make is failing to nominate guardians for their minor children at all. Why, you may ask, would a parent fail to do something so important to protect their child? Before we get judgmental, let's look at the number one reason parents don't nominate guardians for their children: they are parents! That means they are busy, busy, busy. Some parents also tell me that they don't like to think about a time when they would not be there for their kids — or maybe they are a little superstitious and saying it out loud makes it too real. Other parents tell me that choosing a guardian would cause too much family drama. Whatever the reason for failing to nominate a legal guardian for minor children, I promise that it is not as serious or as important as making sure that your child is cared for by someone you trust at all times.

If you have already nominated a guardian for your children — or if this blog post has scared you into starting now on the back of an envelope in your kitchen — take a look at the following mistakes that I see parents make when they choose guardians. I hope that reading these will help you avoid these common mistakes in your family.

The Five Mistakes I See Parents Make

  • Naming a couple.

This one is actually really common. It may seem natural to choose a couple and name both individuals as guardians for your children. But, if you are going to name a couple to care for your children, make sure you are comfortable with all possible outcomes. What if the couple breaks up? What if one of the partners passes away? Would you be comfortable with either one of the people in the couple caring for your children alone? If your choice of a couple is contingent on both partners being involved, they might not be the best choice. Name one instead.

  • Naming only one guardian.

While you may not want to list more than one guardian as your first choice, you absolutely should have multiple choices listed in your Will. Again, you have to consider every possibility. What if the person you chose is no longer willing or able to care for your children? I recommend listing two to four alternative guardian nominations just in case. You can rank them according to your preference.

  • Failing to speak to your guardian nomination beforehand.

This mistake is oh-so common. Ask first! Even if you think that your sister or your college roommate is the perfect person to care for your children, you need to talk to your nominee before committing to them. Have an open and honest conversation about whether your nominee is willing and able to care for your child. This is also a good time to articulate your parenting values and beliefs to your nominee. Listen carefully to their views as well before making a final decision.

  • Failing to provide for the child's care.

I do not recommend taking a guardian's financial ability to care for your child into account. It is best that you choose the right person who will love and care for your child as you would. For the financial part, you can provide for your child's care and future by creating a trust. A trust will also allow you to exercise more control on how and when assets are released to your child and for your child's care. Without a trust, your entire estate could pass to your child as soon as they turn 18.

  • Failing to name a short-term (temporary) guardian.

If your guardian selection lives far away or is not immediately available in case of an emergency, who will be there to care for your child? If something should happen to you, you want your child to enter the immediate care of someone they know and trust. To meet this need, you can choose temporary guardians who live nearby and are able to provide immediate care for your child. Keep a list of your short-term guardians and their contact information in your wallet and provide the list to any caregivers who may look after your child.

Guardianship Can Be Resolved Immediately

As you are reading this blog post, you may be getting a little antsy. Maybe even a little panicked. But please, don't worry too much. Unlike some of the thornier estate planning issues, guardianship is relatively easy to get set up. Call The Tyra Law Firm today at 301-315-0811. We will get you on the schedule for a consultation, and we can even complete guardianship designations that day! Then, we can move forward on the more comprehensive parts of your estate plan. For your children's wellbeing, we want to get this done now!

About the Author

Neil Tyra

Noel's Husband, Bernadette's Dad, Clark's Father – My Three Best Roles So who am I and what am I about? First I was Noel's husband. I'm married (38 years and counting) to a long time resident of Rockville whose family goes back three generations.

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