Why Should I Include Guardianship in my Estate Plan?

Reviewed by Kathryn E. Lauterbach, Esq.

Life is unpredictable, and no one can ever know what may be around the corner in their life. It is because of this that it is always important to have a plan for unexpected circumstances. This can include appointing an individual to take care of you or a loved one if a situation arises where it may be needed. Though it can be unpleasant to consider, in the event you were to pass away, what would happen to your children? Appointing an appropriate guardian ensures you have a say in who is responsible for the care of your children. If you do not name a guardian, the court will appoint someone as they see fit, which may not align with your wishes. There are many ways this can be done, one of which includes guardianship. If you wish to create an estate plan and appoint a guardian within it, contact an experienced New York estate planning attorney today for assistance.

What is Guardianship?

A guardian is an individual who is chosen to make important decisions for another party who is unable to do so themselves. There are different reasons as to why this may be needed. In the state of New York, there are different types of guardianship that can be stated in a will. When you establish a will, you are able to name a guardian for your child in the document. This is ideal, as a will is already a strict legal document with a number of rules, so naming a guardian for your child through this document can help ensure it is legally binding. When dealing with these matters, it is important to understand the purpose of each one.

Common types of guardianships

Guardianship may be appointed for the following:

• Person: There are different ways guardianship may be needed for a person. In the event that a parent dies, leaves the country, or becomes too sick to take care of a child, this type of guardianship may be needed for minors. In the event of this, a judge in Surrogate’s Court can approve, and the individual named in the estate plan can become the child’s legal guardian. In the event you pass away, the Surrogate Court judge assigned to your case will take your wishes into consideration. Generally, the named guardian is appointed, though in any matter involving children, the court must act in the best interest of the child, so if you have chosen a guardian deemed unfit, the court may appoint someone else. This allows them to make decisions for the child such as healthcare, education, welfare, etc. Alternatively, an elderly individual may need a guardian to take care of them if they are unable to take care of themselves.
• Property: An individual that is named guardian for property must take care of any decisions relating to the other person’s money, investments, and savings. In addition to this, they must file an annual report about the properties.
• Person and property: This guardian is named in order to be responsible and make decisions for both another person’s life and their property.
• Ad litem: This individual is appointed by a judge in order to act in place of another during a court case if they are unable to defend their own rights and best interests.

How Do I Choose a Guardian?

Guardians exist to take care of people or property that are meaningful to you. It is because of this that it is important to choose a trusted individual that you believe will act properly on your behalf. This individual should be mentally stable to make decisions for you and not take advantage of your situation or estate plan. When you choose a guardian for your kids, you need to make sure that they have the right qualities and that they are ready for the responsibilities. Some factors to consider include:

• Their existing relationship with your kids
• A guardian candidate’s age and health
• The candidate’s existing family situation
• How financially responsible the candidate is
• The location of the candidate (would children need to change schools?)

You should note, however, that you can choose two different people to care for your child. You may appoint a guardian to receive custody of your child, meaning they are responsible for the daily care and raising of your child, while someone may be appointed to manage the funds left for your child until they are of age. This may be an ideal option if your potential guardian is great with your children, but maybe less financially responsible than another option.

Common Mistakes to Avoid When Naming a Guardian

Naming a guardian is not as simple as naming someone and signing the document. This is an important decision, so considering a number of factors is critical. As such, understanding the most common mistakes made in this process can assist you in ensuring your child is protected.

Not leaving behind instructions

You should make it clear what your wishes for your kids are and leave behind any important information that could help a guardian and everyone else adjust to a new situation.

Forgetting to review their plans every few years

Unfortunately, one of the most common mistakes with estate planning, including appointing someone to serve as the guardian of your child, is failing to review or update your documents. It’s not uncommon for relationships to change or for people to move away. As such, someone who may have been the ideal candidate to care for your children may no longer be a good fit. Regularly reviewing your estate plan is imperative to ensure you can update it if necessary.

Not naming alternates

You should name a guardian, but you should also pick a backup in case something unexpected happens. If your candidate passes away before you do and you do not get the chance to update your estate plan, then the court gets to make this decision for your family.

Contact Our Rockland County Firm

If you are planning your estate, ensuring you appoint someone to care for your child in the event something should happen to you is critical. As such, this is not a matter that should be taken lightly. Enlisting the assistance of an experienced legal attorney with the Lauterbach Law Firm is in your best interest, as they can help ensure that your legal documents are valid, providing you with peace of mind for the future. When you need legal help, do not hesitate to contact our firm today to learn more.