For many new parents, finalizing their estate plan is not top of mind considering the many other, novel tasks they face every day. However, certain estate planning tasks should not be put off. In particular, parents with minor children would benefit from the peace of mind and preparedness that comes with finalizing their guardianship designations, which they can accomplish in their simple estate plan documents or as a standalone form.
A guardian is someone who is named to have custody and take care of your minor children in the event you and your co-parent are unable to do so. We often think of guardianship as something that may come into effect if both parents die or are incapacitated. However, there are other situations in which parents may be unable to care for their child. Consider, for example, parents who travelled abroad before the COVID-19 pandemic and were stuck out of the country due to travel restrictions, or immigrant parents who visit their country of origin and now face difficulty returning to the United States. By designating a guardian, parents are able to plan for the future care of their children without terminating their own parental or legal rights.
Guardianship designations are frequently included as a portion of an individual’s last will and testament. However, guardianship designations may also be made in a separate document. Notably, parents may appoint a “standby guardian” in a written designation that details under what circumstances the guardian should be responsible for the care and custody of the minor child. For example, parents may want a standby guardian to step in if they are deceased, or if they are incapacitated or detained for over one month. You may feel that different triggering events justify your standby guardian stepping in.
A separate guardianship designation may be the preferable option for parents who want to keep their guardianship designation decision private or if they have a more complicated guardianship situation (such as naming one person to have custody of the children, and another to make the childrens’ education and health care decisions). Because your will goes through probate and will be provided to any beneficiaries you name, your guardianship decision and any parameters you specify will also become available if made in your will. Some parents may also prefer drafting a separate guardianship designation if they anticipate having to change the designation frequently; whereas a will must be notarized and signed by two witnesses, guardianship designations do not have this same requirement. Finally, parents who anticipate potential last minute travel or unavailability may want to have a guardianship designation drafted quickly separate from their will, and want the freedom to make minor amendments without the need to draft and execute a will codicil.
Regardless of the method of guardianship designation, it is crucial that parents take the time to carefully consider their guardianship decisions and communicate with their designated guardians regarding the guardians’ ability and willingness to care for the children. Parents should consider not only their guardians’ ability to take care of children, but their location, values, lifestyle, and stability. Guardianship designations can not only give parents peace of mind, but ensure children are kept in homes that best suit them and mirror what they are accustomed to in the event their parents are unable to care for them.
It is worth noting that, while you may request a specific guardian or custodian for your minor child in your estate plan, ultimately, Virginia law allows the court to determine guardianship. This is to account for changed circumstances. For example, perhaps you named your sister who lives in California to be the guardian of your child if you and your spouse die, but your parents live in the same city as you. You may have made this decision to facilitate your child growing up with someone closer to your own age, rather than with your aging parents. However, if you and your spouse both passed, for example, several months prior to your child graduating high school and turning eighteen, the court may decide to give your parents custody of your child to allow your child to finish high school at the school they’re accustomed to, rather than requiring them to move to California, or your sister to move to Virginia, for mere months. This, of course, would be different if there was a clear reason why your parents should not be the guardians. You can specify in your estate plan people who you explicitly do not want to have guardianship—for example, estranged family members who otherwise may seem like viable candidates as guardians to the court.
Proper estate planning is critical for new parents, though among a blur of diaper changes, doctors’ appointments, and playdates, many parents may choose to put off this planning for a later date, until they’ve accumulated more assets or are simply less busy. However, ensuring you have an estate plan set up prior to, or soon after, your child is born, is important and can give new parents the peace of mind in knowing their child will be taken care of if the parents are unable to do so. At Schooley Law Firm, we can help take this weight off your shoulders and ensure your estate plan protects you and your children for long into the future.
If you need help creating or updating guardianship designations in your will, or would like to draft a new guardianship designation, contact us today to schedule a consultation and start planning for your future.