Can My Children Live With You, Please?

I can’t tell you how many conversations that I have had over the years with parents of young children about the importance of naming guardians for their minor children if the client dies before the children are over 18.  I have often remarked that guardianship is usually the main reason people come to do a will and also the reason that so many never make one.  Deciding who can take your place and rear your children in a way that would make you not roll over in your grave is probably one of the hardest decisions you will ever make.  That is why so many people avoid it and just pretend like the possibility isn’t there.  I get it.  I had the same problem.  When I made my will, I named wonderful people as guardians, but they were not a good choice.  They were my best choice, but not a good one. Not because they weren’t loving relatives, but because they were going to do things so completely differently than I would do and that was actually painful to think about. Thankfully, my youngest is now 18, but I won’t lie, I had some sleepless nights about this very topic, and I do this for a living.  I can only imagine what other, less informed people feel when faced with the guardian dilemma. Do you name the most caring people or the most responsible people? Do you name someone young or someone older? These are not easy questions.

The problem is, you can’t put the blinders on and ignore the issue.  You must take responsibility. If you don’t, then a court will have to decide. There could be multiple people that want to take guardianship and it will be a custody battle.  How can that be good for grieving children? Worse yet, what if no one wants to take responsibility because you didn’task, and they don’t think they are the right choice.

Let’s go one step further, those who have actually given thought to the guardianship question are usually only thinking about parental death, but what about parental incapacity?  What happens if you and your spouse go away on a much-needed vacation and you are in an accident and don’t come home?  You are still alive, but you are in no position to parent your children.  They must live with someone who has to have the legal authority to take care of them, put them in school, get them medical care, etc.  Who is that person going to be?  It may not be the same person that would take care of the children in the event of your death.  If you are incapacitated, you may come home again, so you wouldn’t want your children to have relocated to live with your family in another state. Their whole life, and yours, is where you were living.

Keep in mind, that regardless of the circumstances under which the guardianship is taking place, the children will be in a fragile emotional state and will need strength, love, and stability.  They will need an immediate home, not a war zone where they are bounced back and forth between people who are fighting with each other to take control.  For some, it might even just be about the control, and maybe the money, and not really about the best interests of the children. Why would you put your children in that situation?

Early in my career, I had a guardianship case where two young boys got caught up in a battle.  Both of their parents were incapacitated and the mother’s brother and his wife in Florida wanted the children to live with them and so did the father’s parents in New York.  There was no reasonable expectation that either of the boys’ parents were going to be able to participate in the parenting in the near future.  It was a delicate situation because they were all dealing with the circumstances that caused the parents’ absences and there were these two young boys who just needed a family, but they really needed everyone in the picture. In the end, I think it worked out for the best in that the mother’s brother brought the boys to Florida and the judge awarded him and his wife guardianship.  They had two young children of their own and I really felt that they would have a good life.  That was more than 25 years ago, so I hope I was right.

The moral of the story is that if the parents had done their documents and named guardians, both in the event of their deaths and incapacity, the families would have acted accordingly, maybe not happily, but the drama would have been avoided. I think about that family from time to time and hope that the boys turned out well.  Their story is not that unusual.  That’s why I urge you to consider the consequences of inaction and take the necessary steps to protect your children in the event of your incapacity or death.

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