The 6 Most Common Mistakes in Naming A Guardian and How to Avoid Them

Marin Mommies is happy to present a guest article by Marin mom, attorney, and estate planner Thea Beatie Eliot.

Recent statistics show that 74% of the population has not done any estate planning, including naming guardians for their kids. If you are one of the 74%, you are in good company, but the time to act to protect your kids is now and you should read on to do it right the first time. If you are one of the 26%, congratulations! Now comes the dreaded “but”…

But in serving my clients, a lot of estate plans come across my desk that are created by other attorneys (and sometimes by clients using free or low-cost software!) and I consistently see the same issues time and time again.  By identifying these issues, I’m not trying to make you feel bad or disparage other attorneys.  My firm focuses on planning for families with young children and so it stands to reason that we have expertise where others don’t.  Here are those 6 common mistakes:

• You may have named a couple to act as guardians and not indicated what should happen if the couple broke up or one of the partners in the couple died.  This means your kids could end up in the care of someone you wouldn't really want.
• You may not have named enough alternates to serve if your first choice cannot serve.  Deep ranks are important when nominating guardians and I encourage my clients to nominate at least 3 different people.  (I admit to being a little OCD in my penchant for 3s.)  If you’ve nominated people of a senior generation (for example, your parents), this is even more important.
• You may have considered the financial resources of potential guardians when deciding who should raise your children. Your children’s guardians do not need to be wealthy.  It is your responsibility as parents to make sure that there are sufficient assets in the event of your death to care for your children and not burden their guardians with financial stress.  If you do not have sufficient savings and other assets to do that, you need to get life insurance until you do.  Your children’s guardians are the people who will be in charge of your kids’ emotional, spiritual and physical well-being. As discussed in more detail below, they do not also have to be the financial decision-makers for your kids.  What’s most important is that your guardians love your kids and share your most important parenting values. 
• You may not have provided for someone to take care of the money you are leaving behind and that means your money could go to your kids at age 18, outright and unprotected.  I don’t know about you, but if I had inherited any significant amount of money at 18, my life would have been very different and probably not in a good way.  It is important that the assets you leave behind make your children’s life better, not worse.  How to do that?  In a thoughtfully designed trust with a carefully selected trustee.  In some cases, the trustee will be the same person as the guardian.  In other cases, different people will fill these roles.  It depends on the person’s financial skill, whether they have the bandwidth to take on both raising your kids AND managing your financial life, your trust level, whether you want to cause continued involvement by different sides of the family and various other factors. 
• You very likely only named long-term guardians and did not make any legally-binding arrangements for the immediate-term care of your kids; this means that if you were in an accident your kids could be taken out of your home until the authorities could figure out what to do.  This is a parent’s nightmare and is more often than not overlooked by people, including seasoned attorneys.  Parents whose families do not live locally are particularly at risk, but even if you have family around, it is possible that they might not be immediately available if and when needed. 
• You probably did not exclude anyone who might challenge your decisions or whom you know you would not want raising your kids.  This doesn’t apply to everyone, but sometimes there is someone in your life (usually your family) whom you know you would never, under any circumstances, want raising your kids AND it’s possible that they might petition the court to be nominated your children’s guardian despite your wishes.  In that case, what we recommend is a confidential exclusion of guardian that is to be brought forward only if the unwanted person causes trouble.

The good news? Avoiding these mistakes is easy if you 1) know about them and 2) work with an attorney who knows how to avoid them through his or her experience in planning for families with minor children.

Thea Beatie Eliot is a mother of 2 and estate planning attorney who zealously focuses on helping families with young children protect what they love. She lives and practices in Marin County, California.  Learn more about Thea on her blog at www.TheaLaw.com/blog. © 2009 Thea Beatie Eliot