Young Parents Deal with Legal Guardianship

My husband and I are working on our wills and we have some questions for you.

Do you have suggestions about how to and whether to discuss guardianship issues with grandparents, just in case something should happen to both parents? What if you are selecting one set of grandparents over another? What if you want the ability to change to non-grandparents in the future as they get older, but don’t want to hurt their feelings?

We feel really good about our decision for now, but also feel like these conversations could stir up a lot of relationship dynamics for a very unlikely event! Should we draft another document that outlines our wishes and hopes, or is less more?

We’d like your thoughts on the topic of legal guardianship for our two young children.

And you thought the politics of the guest list for your wedding were tricky! Seriously, I commend you and your husband for putting the time, thought, energy and money into taking care of your wills. Too often young parents don’t bother with their wills because they feel their assets are not significant enough to worry about, or they find it uncomfortable to have to think about something as unpleasant as their incapacitation or death, or they say, “What are the chances both my spouse and I die?”

This last point is valid. Most likely you cannot think of one instance in your own life where both the parents died, leaving behind young children. But as unlikely as this may be, you are wise to legally protect yourself (as with your medical directives) and your loved ones from outcomes which would not be to your liking – such as your children being raised by a sibling whose parenting philosophy is unacceptable to you.

Regarding your questions about legal guardianship for your two young children, I consulted with Robert L. King, a Fort Lauderdale attorney who specializes in wills and probate. Mr. King explains that probate is the court procedure to determine who receives your assets that are in your individual name when you die. It is “intestate” if you do not have a valid will and “testate” if you do. So you do not avoid probate since the will must be admitted as valid by the court.

In the unlikely event that both parents die and they have not left a will, the courts will take over and make important decisions on the parents’ behalf, starting with a court-appointed guardian. However, by naming your guardian(s), you generally avoid the conflicts that can erupt between family members over who would be best for raising your offspring.

In your will you may list as many people as you want to be potential legal guardians for your children. The order in which you list them is important: In the sad event that your children need to be raised by their legal guardian, the courts will start at the top of your list and ask each in turn if they are willing to assume the responsibilities of raising your children. If the first one declines, the next party on your list is asked.

As you are drawing up your will, it is up to you whether you ask each person on your list if they would consider being a legal guardian, as there is nothing to prevent you from listing them without their permission. If you decide to get permission from your potential legal guardians to be listed, you don’t have to tell them where they are on the list.

In this way, if you prefer one set of grandparents over another set, or one sibling over another, or one close friend over another, you can simply tell all parties that you would like their permission to name them as potential legal guardians. They will no doubt appreciate knowing that they are being listed along with others and that they can either accept or decline as you are drawing up your wills – or at the time the list, alas, needs to get activated. In any event, they know you thought enough of them to name them as possible legal guardians for your children.

You and your lawyer can easily change the order of the list in the future, dropping some and adding others, as circumstances change. Factors such as illness, geographical moves, or different parenting philosophies may motivate you to re-evaluate your list of legal guardians. People on the list at one time do not need to know they are no longer on your updated list or that the order of your list has changed.

Regarding the possibility of hurt feelings of not being named or not being first on the list, Mr. King has advised young parents to write letters to the parties explaining why certain decisions have been made. These letters can be written by the young parents and left with the lawyer, to be shared only if both parents die and legal guardianship becomes an active issue, or they can be shared at the time they are written, or any time in between.

I want to close by giving you kudos for doing everything you possibly can do to ensure your children will be provided for and nurtured by people you have handpicked because their values best reflect what you want for your children in the unlikely event you and your spouse die. I hope all young parents will follow your example and take care of those wills they’ve been putting off. A well-considered will is a gift to your child(ren).

Ask Dr. Gramma Karen is published every other Tuesday.
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