Choosing a guardian for your child (a minor or an adult child with a disability) is a very tough decision. ABC’s Modern Family last night featured this dilemma as their subject last night. Of course, this is a comedy show, so not really a good guidepost for estate planning decisions, nevertheless, it did demonstrate some methods on deciding upon whom to choose. (Plus, it’s just funny and enjoyable to watch.)
One good idea in helping you select a guardian is a home visit of your potential guardian in their natural environment, as was the focus of the comedy last night. The characters also spoke with the children of the potential guardians.
It is crucial that the guardian(s) you select are consulted to ensure they would be willing to act in that role. If you are considering selecting a couple, you should think about what would happen if they divorced. I advise my clients that only one member of a couple should be selected. In the alternative, you could name one as primary guardian and the other as the back-up guardian. If you name the couple as joint guardians and a divorce or separation occurs, then you have a problem and, likely, court proceedings will have to be undertaken.
I know for many people it’s hard enough to select just one person to name as guardian, but you really need to name a secondary person in case your first choice passes away or is unable or unwilling to serve as guardian. You can also name an additional or tertiary choice as well. This is especially important if your choices are older.
Once you have made your selection, you will need to update or create a Will to make your selection effective. Without a Will, a court proceeding will have to be undertaken and the Court will name a guardian. If you have a Will, it is probated in Court after your death (where it’s terms will be followed) and your named guardian will be appointed, unless the Court finds that it is not in the “best interest of the child” to do so. (For instance, if the named guardian has become a drug addict, the Court may be petitioned to name another person as guardian (like your second choice in your will).)
Keep in mind, that your choice of guardian in your Will is only effective upon your death. If you become incapacitated and cannot care for your child, a temporary guardian can be named in an Emergency Guardianship Proxy (in Massachusetts). (Since you are still alive, your guardian choice in your Will is not necessarily considered.) This Proxy is also effective after your death and can save your family court costs and stress. With this Proxy there is no need for an emergency appointment by the Court to appoint a guardian until your will is probated. This proxy is only temporary (90 days) per statute.
Here’s a link to the Modern Family episode on Hulu. http://www.hulu.com/watch/233338/modern-family-someone-to-watch-over-lily