Thinking about dying is unpleasant, but then when you think about those you are leaving behind, it gets worse. If you and your spouse were to die, leaving behind minor children, your kids are going to need a place to live and people to raise them. But there’s far more to it than that. Your kids are going to need adult supervision until they reach the age of majority (i.e, 18) and they are going to require medical care, schooling, “parenting,” love, guidance and compassion.
You, as the parents of the minor(s), need to clear your head and ask yourselves what is in the best interest of the children. Depending on the ages of your children, you may want to involve the older children in the decision-making discussion. Chances are they will have some ideas about where they would be happiest. Finally, you will need to have a good long talk with the prospective guardians to ensure they are up to the task and understand the full scope of their responsibilities. Following that, you will need to have an attorney create the legal documents to implement those decisions.
As you sit reading this, ask yourself who raised you and, for a moment, consider if those folks are possible candidates to raise your children in the unlikely event of your early death. Are they likely to be around for the next two decades? Do they have the energy and health to make your kids’ well-being their primary focus? Are they financially stable, and are they generous with their love and compassion?
You can also consider your own siblings or close friends, but think it through. For instance, you may have a wonderful brother who would be the perfect guardian, but perhaps he is married to a woman with a chronic illness or he is the parent of a special needs child. That is probably not a good choice as he will likely have his hands full for decades to come.
Sometimes there are multiple sets of grandparents, meaning more than two due to divorce and remarriage. Watch your choices there, especially when you realize that the grandparent that you select is going to have to deal with a former spouse for a long time. You don’t want your children caught in the middle of a decades-old volatile relationship.
Be extra careful when dealing with a special needs child. This requires a lot of thinking and soul searching, and again, you will benefit from a long talk with the prospective guardian(s). Think of everything that you would be expected to do for this child for the rest of his or her life, and look for someone with the vigor to emulate your commitment and someone with whom your child relates.
Finally, when you appoint a guardian to take care of your children, remember that there is another post that needs to be filled: guardian of the money of the minor. A child under age 18 cannot inherit directly, so you need to decide who manages that money. Many times the prudent client will set up “checks and balances” by appointing a member of one side of the family to raise the children and asking one from the other side to manage the money. Additionally, you will want to set up a trust for your children to hold and manage the money your children will receive from you.
And if your case involves a child with special needs, you must talk with your attorney about the Special Needs Trust, because you simply cannot leave money directly to your child. For one thing, he or she will not be able to manage it. Additionally, he or she may get bumped off government programs if the money is not set aside correctly. For example, Social Security Disability benefits will cease if the recipient has too much money.
This is not an easy conversation to have, but it might be the most important decision you will ever make. You can take comfort in the fact that should the need arise, a plan is in place and your children will be well-cared for.