One of the most selfless acts of parenting that I get to witness on a fairly regular basis is when a couple with very young children comes in to discuss how to protect those children in the event of the parents' untimely deaths. These brave souls face their most horrific fears and spend their resources to create a plan that will provide direction and support for their children and those who will care for them in the event that both of them die prematurely.
The two biggest estate planning issues for parents of young children are (1) who will the children live with in the event neither parent is alive and (2) who will manage the financial resources for the children. Parents often ask whether they should name the same person to be in charge of the finances as has custody of the children. There is no right answer to this question. It depends on whether there is one person who is both good with children and good with money. If there is, then there is no reason why that person should not be both the guardian of the children and the custodian of funds for the benefit of the children. Some clients and some advisors prefer that someone other than the guardian be in charge of the finances as a check and balance. Others feel that it is too great a burden to saddle one person with both the children and the finances. These concerns are legitimate and should be factored in to the choice of guardian and custodian.1
Clients often ask if they need advance permission before naming individuals as guardian or custodian. I recommend that clients designate a few individuals to serve in these capacities. I also tell clients that they do not need to discuss this with the individuals in advance. If the time comes and the designated person is called to serve, he or she can accept the designation or not '“ at that time. If they agree to serve now, but in 5 years are unwilling or unable to serve, perhaps because they are caring for an elderly parent, then it makes no difference that the client obtained the advance agreement to serve. Also, many of our clients routinely change their designations of the named guardians. If the client told a sibling that he or she was to be designated as guardian, the client may feel awkward changing that designation without speaking with the sibling originally named.
Another slightly uncomfortable topic is whether to also name the spouse of a married sibling who is the desired guardian. One option is to recommend that the clients only name the sibling who is intended. If that sibling is divorced or widowed when the time comes, the sibling will serve alone. If the sibling is married, then only the sibling will be designated to serve. The sibling's spouse will be present and supportive, but not acting as a court-appointed guardian. A second option is to name both the sibling and the sibling's spouse as guardian. Only a guardian can officially make decisions about the health care and education of a child. If the sibling works outside the home and the sibling's spouse is the one most likely to take the child to doctor's appointments, then the clients should consider naming both the sibling and the spouse. If the couple is not together when the time comes, then the will can list the sibling alone as the next choice.
Couples most often choose family members to serve as guardian, but occasionally they will choose close friends over family. If it is important to you that your children visit with family, you should communicate this to the proposed guardians.
It may be helpful to leave a side-letter to the guardians and custodians explaining the clients' parenting philosophy. The idea behind a side-letter is that it is a private document, not part of the will, which is intended to be read by the guardians and custodians in the event that both parents die prematurely. For example, if the parents feel that it is imperative for the children to visit with both sides of the family, that could be stated in a side-letter. Also, if the parents intend that education be construed broadly to include travel and non-traditional forms of education, that could be included in a side-letter.
There are many aspects of the responsibilities of guardian and custodian which are important to consider. We routinely engage in these discussions with our clients. If you would like to review and consider your choice for guardian or custodian, feel free to call the office to make an appointment.