Choosing guardians for your minor children is the most difficult and most important decision you’ll ever make. It’s enough reason to get a comprehensive up-to-date estate plan in place. We sometimes get the question, “How can I prevent certain relatives from serving as guardians of my children?” The fear stems from how their children would be cared for as well as how their assets would be handled or mishandled.
First, know that you can control who is appointed guardian of your minor children if you have an up-to-date will. On the other hand, if you don’t have a Will, the court will choose who raises your children (and who manages their money) and it might not be who you would want.
Second, have a conversation with the people you’d like to serve as guardians of both your children’s person and their money. This can be the same people or different people. Make sure that they understand the full responsibilities and time commitment it would entail.
Third, name back-up guardians, in case your primary guardians are unable or unwilling to serve, when the time comes. Have that same conversation with your back-up guardians.
Fourth, have your estate planning attorney specifically state in your will that those certain relatives shall never serve as guardians of your minor children. This is necessary in case tragedy strikes, your named guardians cannot serve, and the court must choose who shall raise your children.
Fifth, execute a stand-by guardianship designation which appoints guardians (those you name in your Will) to serve as guardians of your children if you are alive but cannot care for them. Your Will is only effective if you’re dead; it’s not effective if you are incapacitated.
Sixth, provide a trust with trustees to manage the assets on behalf of your children; don’t try to give assets to children outright. Minor children can’t legally inherit and it causes an expensive legal mess.
To make sure that you’re in full control of who serves as guardian of your minor children, consult with a qualified Estate Planning attorney.
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