When many people hear the words “estate plan” they think of financial planning.  But one of the most important aspects of an estate plan is what happens to children, especially if you and your spouse pass away.  Who will take care of them?  If you select a guardian, your guardian can step in.

But what if you are divorced?  Deciding on guardians can be incredibly complicated for divorced couples, especially if you find it impossible to reach a joint decision about who should be named.

We can’t help you reach a joint decision, but there are steps you can take.

First, keep in mind that if you pass away your ex-spouse will almost always become the “guardian” of the child, even if you had full custody of the child.  They are the parent; they will take over.

Even so, make sure you select a guardian and, better yet, also select one or two alternates, just in case you both pass away.  Say your spouse dies first, and then you pas away.  Your guardian will step in.  Or, if you pass away first and then your spouse dies, if he or she did not name a guardian, the guardian you named will generally be used since that is an indication of a parent’s intentions (even though you, as the “naming parent,” are no longer alive.)

The best option is for you and your ex-spouse to agree on a guardian and both name that person.  That way the court knows – based on your estate plans – what should happen if you both should pass away.

Mark S. Eghrari & Associates, PLLC is a member of the American Academy of Estate Planning Attorneys.

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A few months ago, CNN released an article about a government study regarding guardianship and guardian abuse. The findings of the Government Accountability Office study are troubling. Some court-appointed guardians for incapacitated senior citizens (a court may appoint a guardian if guardianships and Powers of Attorney are not already in place) are not screened before they are appointed, and worse are not monitored by the court once they take over the senior’s affairs. The potential for abuse is incredible: In twenty cases where criminal or civil penalties resulted, guardians stole over $5 million in assets from their victims. Some also physically abused or neglected the seniors they were responsible for helping.

(To read the entire article, click here.)

The Special Committee on Aging will use the GAO study and add federal oversight in order to help court systems improve their methods for screening, training, and monitoring guardians. (Currently each state is responsible for the guardianship system.)

Court-appointed guardians are only necessary in the absence of other estate planning tools, like Property Powers of Attorney, Healthcare Powers of Attorney, HIPAA Powers of Attorney, and other legal instruments that allow a trusted friend or loved one to take over the affairs of a person who is ill or incapacitated. Make sure your estate plan – and the estate plans of your loved ones – include those provisions so the courts will not need to get involved.

A guardian’s primarily role is to care for and protect the interests of the person they have been given responsibility for. Most guardians do an incredible job. But, if you suspect someone you know has a guardian who is not doing his or her job properly, call us for guidance.

Mark S. Eghrari & Associates, PLLC is a member of the American Academy of Estate Planning Attorneys.

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When you think of the word “guardian,” at least where estate planning is concerned, you probably think about a person who will take care of your children if you die unexpectedly. Actually there are two basic types of guardians:

• Guardian of a person – responsible for taking over the “parenting” role

• Guardian of an estate – responsible for taking over the finances of the estate

Of course, one person or persons can handle both roles, which in fact is often the case. But you can choose a different person to “parent” your children while another handles the finances. Either way, make sure you choose wisely, and then make sure you ask potential guardians for their permission before you name them as the guardian of your children. Sometimes people, no matter how close they are, say no to this request. Make sure becoming a guardian is not a surprise – and is something the person or persons you name will accept.

Also consider whether you wish to appoint co-guardians. In some cases, co-guardianship is a natural fit, like if you ask your brother and his wife to take care of your children if you pass away. If you do appoint co-guardians, make sure they have some connection to each other. If your co-guardians don’t even know each other… how can you expect them to work well together to raise your children?

Finally, consider the financial impact on your guardians. Raising your kids requires time and money. Give the guardians you name access to assets – either directly or through the guardian of the estate – so they can cover the cost of raising your kids and provide your children with the opportunities you want them to have.

Mark S. Eghrari & Associates, PLLC is a member of the American Academy of Estate Planning Attorneys.

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For couples with underage children, stipulating who will care for their children if both parents die is a critical part of an estate plan. But what happens if you stipulate guardians and later decide you want someone else to raise your kids?

Determining who will raise your kids is an important decision. Many people choose friends or family members – and why not? But later you may have second thoughts, especially if you realize your parenting style is radically different from the parenting style of your specified guardians. If that is the case, making a change makes sense.

Here’s the best way to approach the issue. First, when you initially choose guardians, talk to them first. Ask if they are willing to take on such a major responsibility. Talk to the people you plan to name in your estate plan before you name them. Then, let them know how your estate plan works, what provisions you have made for your children, etc, so they will know exactly what to expect. Don’t forget to give them the contact information for your estate planning attorney.

Then, if you decide to make a change, you have a choice. If you switch from non-related guardians to relatives, most people will understand. Or if you switch because a couple gets divorced, they should certainly understand. But if you feel making a change will cause hard feelings, you may decide not to inform the “old” guardians that you made the change. That is up to you.

But no matter what, talk to potential guardians before you name them in your estate plan, and explain exactly how the process works. Make sure they are as prepared as possible – not only will that make it easier for them, but it will make the transition smoother for your children, too.

Mark S. Eghrari & Associates, PLLC is a member of the American Academy of Estate Planning Attorneys.

Visit my website for full links, other content and more!