As a parent, you are responsible for the care of your minor child. In most circumstances, this
means getting them up for school, making sure they are fed, and providing for other basic
needs. However, what would happen if you and your child’s other parent were unable to care for
them?
It is important to note that if something were to happen to you, your child’s other parent is most
likely going to have full authority and custody of your child, unless there is some other reason
why they would not have this authority. So, in most cases, estate planning is going to help
develop a plan for protecting your child in the event that neither parent is able to care for them.
What If You Die?
When it comes to planning for the unexpected, many parents are familiar with the concept of
naming a guardian to take care of their minor children in the event both parents die. This is an
important step toward ensuring that your child’s future is secure.
Without an Estate Plan:
If you and your child’s other parent die without officially nominating a guardian to care for your
child, a judge will have to make a guardianship decision. The judge will refer to state law, which
will provide a list of people in order of priority who can be named as the child’s guardian—
usually family members. The judge will then have a short period of time to gather information
and determine who will be entrusted to raise your child. Due to the time constraints and limited
information, it is impossible for the judge to understand all of the nuances of your family
circumstances. However, the judge will have to choose someone based on their best judgment.
In the end, the judge may end up choosing someone you would never have wanted to raise
your child to act as your child’s guardian until they are 18 years old.
With an Estate Plan:
By proactively planning, you can take back control and nominate the person you want to raise
your child in the event you and the child’s other parent are unable to care for them. Although
you are only able to make a nomination, your choice can hold a great deal of weight when the
judge has to decide on an appropriate guardian. The most common place for parents to make
this nomination is in their last will and testament. This document becomes effective at your
death and also explains your wishes about what will happen to your accounts and property.
What If You Are Alive but Cannot Manage Your Own Affairs?
Although most of the emphasis is on naming a guardian for when both parents are dead, there
may be instances in which you need someone to have the authority to make decisions for your
child while you are alive but unable to make them yourself.
Without an Estate Plan:
Not having an incapacity plan in place that includes guardianship nominations means that a
judge will have to make this judgment call on their own with no input from you (similar to the
determination of a guardian if you die without a plan in place).
With an Estate Plan:
A comprehensive estate plan can also include a nomination of a guardian in the event you and
the child’s other parent are incapacitated (unable to manage your own affairs). Although you are
technically alive, if you cannot manage your own affairs, there is no way that you will be able to
care for your minor child. This is another reason why having a separate document for
nominating a guardian may be preferable to nominating guardians directly
in a last will and testament. Because a last will and testament is only effective at your death, a
nomination for a guardian in your will may not be effective when you are still living. However, a
nomination in a separate document (most commonly in a Revocable Living Trust) that anticipates the
possibility that you may be alive and unable to care for your child can provide great assistance to the
judge when evaluating a guardian. Depending on the nature of your incapacity, this guardian may only
be needed temporarily, with you assuming full responsibility for your child upon regaining the ability to
make decisions for yourself.
What If You Are Just Out of Town?
Sometimes, you travel without your child and will have to leave them in the care of someone
temporarily. While you of course hope that nothing will go wrong while you are away, it is better
to be safe than sorry.
Without an Estate Plan:
Without the proper documentation, there may be delays in caring for your child if your child were
to get hurt or need permission for a school event while you are out of town. The hospital or
school may try to reach you by phone in order to get your permission to treat them or allow them
to attend a school event. Depending on the nature of your trip, getting a hold of you may not be
easy (e.g., if you are on a cruise ship with little access to phone or email). Ultimately, your child
will likely be treated medically, but the chosen caregiver may encounter additional roadblocks
trying to obtain medical services for your child, and they may not be able to make critical
medical decisions when needed.
With an Estate Plan:
Most states recognize a document that allows you to delegate your authority to make decisions
on behalf of your child to another person during your lifetime. You still maintain the ability to
make decisions for your child, but you empower another person to have this authority in the
event you are out of town or cannot get to the hospital immediately. This document allows your chosen
caregiver to make most decisions on behalf of your child, except for consenting to the
adoption or marriage of your child. The name of this document will vary depending on your state
and is usually effective for six months to a year, subject to state law. Because this document is
only effective for a certain period of time, it is important that you touch base with us to have new
documents prepared so that your child is always protected.
We Are Here to Protect You and Your Children
Being a parent is a full-time job. We want to make sure that regardless of what life throws at
you, you and your child are cared for. Give us a call at 352-377-6600 to learn more about how we can
ensure that the right people are making decisions for your child when you cannot.