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Estate Planning In Plain English Chapter 1 – Who will raise my kids if I’m not around?

a happy familly

Why choose guardians?

For those of us who have young kids (mine are age 4 and 2 at the time of writing), there is perhaps nothing more terrifying to contemplate than the possibility that we may not be there to raise them.  From my point of view, the only thing worse than not being there to raise them would be for them to be raised by someone I would never have chosen.

If you haven’t nominated guardians in a will, who makes the decisions as to who should be appointed guardian of a child when both parents die or are incapacitated?  Answer: a judge.  It’s as simple as that.  No one knows better than you what your kids are like, what makes them laugh, how they like to learn, what they like to do.  But the person that decides who raises them will know nothing about you, and nothing about your kids.  All he will have is the information placed before him in court. 

Imagine this scenario: your sister in law is perfect on paper.  She has a great job, she’s on the PTA, she takes her kids to piano and violin lessons every day, and has fresh croissants delivered from France every weekend.  The only problem is that she is the last person on earth that you would want raising your kids.

Your sister, on the other hand, has never held down a job for more than two weeks, climbs mountains in faraway places when she goes on vacation, smokes a lot, and lives above a liquor store.  BUT she shares your values, your kids adore her, you know that she would love your kids as if they were her own.  She is who you would want to raise your kids if you were not able to.

Who do you think the judge would choose?  Your sister or your sister in law?

This is the problem with not nominating a guardian in a will.  No one knows better than you who should be charged with such a profound responsibility; but a judge will have no way to know what you would have wanted.

How do you go about choosing guardians?

For some people, it’s an easy exercise.  Maybe you want to name your parents, or your in-laws.  But you worry that they’re too old.  Maybe you want to name your best friends, but you worry that your family would be offended.  Maybe you want to name your sister and brother in law, but you worry that they wouldn’t be able to cope financially.

How do you go about making this important choice?

The primary consideration is: who shares your values.  It might help to consider factors such as personality, morals, religion, integrity. 

If you want to name your parents but are concerned that they may not be up to the task as they age, you could name them and name a back up who can be appointed if your parents are unable to serve as guardians.

If you don’t have family members that share your values, but your best friends do, you are perfectly within your rights to nominate your best friends.

One factor that many people take into account but shouldn’t is finances.  You may feel that the family that you would want to look after your kids wouldn’t be able to afford it.  That factor should be discounted.  The financial side of things is for you, the parent, to take care of.  One of the best ways to achieve is that often is to take out life insurance.  The life insurance proceeds would then be there to enable your chosen guardians to look after your children.

One final point to consider: if you nominate a couple as guardians, make sure you set out in your estate plan whether you would want one member of the couple serving as guardian alone.  For example, if you leave your children to your sister and her husband and something happened to your sister, would you want your brother in law raising your children alone.

These are some of the key points to consider when nominating guardians.  Even if you’re not 100% sure about your choice of guardian, document your wishes nevertheless.  Remember that if you don’t make a choice, a judge will choose for you.  His choice may not have been your choice. 

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