Create An Estate Plan

Beyond family, consider close friends, families with whom your family is close, the families of your children’s friends, friends you know from your place of worship, even teachers or child care providers with whom you and your children have a special relationship

Don’t eliminate anyone from onsideration because you don’t think they have the financial wherewithal to take care of your children. You can take care of the finances with what you leave or by having adequate life insurance. You can even instruct your trustee to provide funds for your chosen guardian to build an addition to their home or move to a larger home to accommodate your children.

Consider whether each couple or person on your list would truly love your children if appointed their guardian. If they have children of their own, will your children be second fiddles? Or is the couple sufficiently loving to make your children feel loved no matter what?

Ask yourself which people on your list most closely share your values and philosophies with respect to your:

• religious beliefs
• moral values
• child-rearing philosophy
• educational values
• social value

Consider whether each of your candidates has the personality traits that would work for your children.

• Are they loving?
• Are they good role models?
• Do they have the patience to take on parenting your children?
• How affectionate are they? (If your family is particularly affectionate, a guardian who is loving but not physically affectionate could be damaging.)
• If they’re fairly young, how mature are they

• How would raising children fit into their lifestyle?
• If they’re older, do they have the necessary health and stamina?
• Do they really want to be parents of a young child at their stage in life?
• Do they have other children? How would your children get along with theirs?
• Are there potential problems if your children were to live with theirs?
• How easily could the problems be dealt with? (For instance, do you want to place a child who struggles in school with a high-achieving child of the same age for whom everything comes easily?)
• How close do they live to other important people in your children’s lives?
• If a couple divorced, or one person died, would you be comfortable with either of them acting as the sole guardian? If not, you need to specify what you would want to happen.

Most likely, no one on your list will seem perfect – that is, just like you. But if you truly consider what matters to you most, you will probably be able to make some reasonable choices. In the end, trust your instincts. If one couple or person meets all of your criteria, but for some reason doesn’t feel right, don’t choose them. By the same token, if someone feels much more right than any of the others on your list, there’s good reason for it. Make your primary choice, then some backup choices. It’s essential that both you and your spouse agree. If you cannot make a decision, or if you and your spouse cannot agree, a good counseling-based estate-planning attorney can help you through the process.

Temporary guardians may be appointed if both parents become temporarily unable to care for their children – for example, as the result of a car accident. Depending on your choice for permanent guardians, you may want to designate different people to act as temporary guardians. If your choice for a permanent guardian lives a considerable distance away, choose someone close by to serve as temporary guardian. If you’re temporarily disabled, you’ll want your children close by. And you won’t want their lives unnecessarily disrupted by moving them to a new town and school. If you have no relatives or close friends nearby, consider families of your children’s friends.

Because it’s difficult to predict what your children’s needs will be as they grow older, consider appointing a “Guardianship Panel” to decide who would be the best guardian when and if it becomes necessary. Choose trusted relatives and friends to make up the panel. This allows for maximum flexibility, so the most appropriate choice can be made at the time a guardian is actually needed. The Panel can consult with your children and assess their needs and desires to make the most appropriate choice based on the current situation.

If you’ve chosen friends over relatives, or a more distant relative over a closer one, be sure to explain your decision in writing. That way – in the unlikely event your choice is challenged by people who feel they should have been chosen – a court should readily uphold your decision, knowing you’ve made your choice for good, solid reasons.

Nominate at least 3 guardians in successive order. That way if a first choice guardian is unwilling or unable to take custody of your children, the Court will know your second and third choices for raising your children.

If your children are old enough, talk with them to get their input as well. And be sure to confer with the people you’d like to choose, to ensure they’re willing to be chosen and would feel comfortable acting as guardians. Once you’ve made your choice, there are steps you can take to make sure the potential guardians you’ve chosen will have the guidance and support they need. Here are a few ideas:

• Create a set of guidelines to convey information about your children, your parenting values and your hopes and dreams for your children.
• When a person becomes disabled or incapacitated, he or she is often unable to make personal and/or financial decisions. If you cannot make these decisions, someone must have the legal authority to do so for you. Otherwise, your family must apply to the court for appointment of a conservator for either your person or your property, or both.
• At a minimum, you need at least two documents in place, a Power of Attorney for Finances and a Health Care Directive. A broad Durable Power of Attorney that will allow agents to handle all of your property if you become incapacitated will keep your family out of the court process and allow them to pay your bills. Equally important is the appointment of a decision-maker for health care decisions which can be accomplished through an Advance Health Care Directive (in California). This document may be called other things in other states.
• Alternatively, with regard to your property, a fully funded living trust can ensure that your property will be properly managed, pursuant to the highest duty under the law that of a trustee. It is important that you choose your trustees and agents carefully and that they are people you trust who are capable of handling your affairs the way you would.
• You will also want to make sure you address the release of your medical information to your loved ones. Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), absent a written authorization from the patient, a health care provider cannot disclose medical information to anyone other than the patient or the person appointed under state law to make health care decisions for the patient. The penalty for failure to comply with these rules is severe: civil penalties plus a criminal fine of $50,000 and up to one year of imprisonment per occurrence. It’s even worse if the disclosure involves the intent to use the information for commercial advantage, personal gain, or malicious harm.
• Since these HIPAA rules became effective, most doctors, hospitals and other health care providers now refuse to release any information absent a release from the patient. For example, hospital staff will go so far as to refuse to disclose whether one’s spouse or parent has been admitted to the hospital. The inability to receive information about a loved one could become very troubling when the information concerns treatment as part of long-term care. The regulations promulgated under HIPAA specifically authorize a HIPAA Authorization for release of this information to persons other than you or your personal representative. Thus, you should consider creating such an Authorization so that people you designate in addition to your personal representative can access this informatio