Many parents suddenly find themselves considering estate planning
because they want to ensure the care of their children. Some new clients of mine, John and Anna, a couple from Madison, Mississippi, recently adopted a newborn
baby. Even though they are in their late twenties, they’re concerned
about who would care for their son if something happened to them. As a
result, they have begun to look into estate planning and evaluate their
current financial plans. They have a retirement plan (IRAs, pensions
and 401(k) benefits), life insurance and other investments, but they
recognize that those plans may not meet their new needs as parents. So,
what should parents know about guardianship and conservatorship or
"guardian of the estate?" And, how do you go about choosing the best
person to care for your children’s physical, mental and financial needs?

All
parents should have a complete estate plan created that includes
nomination of a guardian and successor guardians. A guardian can be
named in a simple will. However, when a will is used, another person
who may feel they are a better choice for guardianship can contest the
parent’s choice during probate. The court may or may not follow your
wishes, based on what the court believes is in the best interest of the
children.

As parents, you know the awesome responsibility
involved in raising a child. Now, more than ever, parents need to be
vigilant and involved. As we move into the new millennium, there are
myriad problems facing American youth. It is often a struggle to ensure
your children are receiving the best education, are safe from harm and
are growing up to be admirable people. When you consider whom you would
choose for a guardian, ask yourself the following:

• Do your children know and like the person?
• Does the person share similar moral values to your own?
• Is
  the person healthy and physically able to handle the responsibility of
  raising a child? Can you reasonably assume they will be alive until the
  child becomes an adult?
• What is his/her lifestyle?  Does he/she work a lot? Travel a lot? Does he/she have time for a child?
• Does he/she have other children?
• Does he/she have a home in which to raise a child?
• Is he/she married?  How would the spouse feel about raising your child?
• Is he/she financially secure and able to handle money responsibly?
• Is the person willing to act as a guardian?
• Would your children have to move?
• Would your children have stability and continuity in a family environment?

Most
importantly, keep in mind that the best person is someone you know and
trust and who knows you and your children. This person may not be a
family member and that’s acceptable. The choice is yours. Choose the
person you would trust with the most precious and valuable people in
your life – your children.

It is possible that the person you
think would make the best surrogate parent isn’t the person you would
trust with your money. They may be able to provide the love and support
your children need, but have terrible skills as a money manager. This
is not often the case, but should this problem arise for you – there is
a solution. You can select a conservator or "guardian of the estate."
You would need to ask yourself a lot of the same questions you asked
about the potential guardian. The person you select to be "guardian of
the estate" should also share your values, care about and know your
children and be willing to act as "guardian of the estate."

One
problem that you should consider, is whether or not there is a
potential for your two guardians to come into conflict. Obviously, any
number of things can happen over the lifetime of a child, and your two
guardians may not agree on everything. That’s alright, but if there’s a
potential for any serious disagreement, you might want to reconsider
your choices. Also, you can help prevent disputes by leaving very clear
letters of intent. These letters to the guardians will lay out your
wishes for your children. You can say anything you want in the letters,
but keep in mind that your children will grow and change and so will
the world. Be flexible and recognize that while you may want your child
to go to an Ivy League university and become an accountant, your child
may grow up with a love for music and become a classical guitarist.
Additionally, providing instructions that are very specific, such as
what college you want your children to attend, may cause guilt for the
guardians. They might feel they have betrayed you when they choose to
allow the child to make their own choices instead of following your
instructions.

Clear communication is essential to the process of
choosing a guardian or guardians for your children. Not only do you
need to express your wishes to the selected individuals, but you also
need to be sure they are open to the responsibility. Imagine how
shocked you would be to find suddenly that you had been chosen to raise
someone’s child – and they had never discussed it with you. There are a
lot of reasons why someone might choose not to be a guardian. While you
may think that your chosen guardian wouldn’t hesitate to raise your
children, they may think otherwise. Beyond simply discussing whether or
not they want to be a guardian, you should also talk to your chosen
guardian about your child and involve them in the daily life of your
child. The more involved they are, the more readily able they will be
to step in and care for your child. That involvement combined with
regular open communication will also give them a better idea of what
you want for your children and what your children want for themselves.

It’s
difficult to imagine that something could happen that would leave your
children orphaned, but it happens everyday. What’s worse than leaving a
child parentless? Leaving them parentless, without a loving guardian
and facing a lengthy court proceeding to determine what will happen to
them. By establishing an estate plan that includes clear instructions
for guardianship, you provide some measure of protection for your
children even after you’re gone.