Some of the things you will want to talk about:

• Whether the prospective guardians want to serve. They may already be named by other friends or relatives and have their plate full. They may also have medical or other issues that make them uncomfortable about serving. Respect their decision if they say “no, thank you.”
• The financial arrangements you have in place. Assure the guardians that you have made adequate arrangements with your finances so that your children will be provided for without putting a hardship on the guardians.
• The family members you want your children to stay in touch with. Provide your prospective guardians with a list of family members that you want your children to keep in touch with in the event both parents pass away. If there are family members you have concerns about, let your guardians know about them, too.
• Your children’s medical and educational information. Keep an updated list of your child’s medical and educational information and let your guardians know where this information is located.
• Your children’s habits, routines and activities.  This can be a document that you update yearly letting your guardians know about your children’s habits and routines. This can be especially helpful if your guardians do not see your children on a regular basis. It can also be a nice way to record memories of your children for you and them to look back on later.

While your guardians will hopefully never need to serve, be sure to take the time to make things easier for them, and your children, if they ever need to.  Then, call your attorney to put the legal documents in place to make sure your choice of guardian will be honored.

The myths in the article are:

1. That there is a perfect match for your children, you just have to figure out who that is and then you’ll get the Will in order . The truth is, there is no one more perfect for your children than you. Trying to find your clone will not work. Think about your friends and family, and your children and try to envision where they would be most comfortable and safe and happy. Remember, you can always change your change your choice as your children grown and change.

2. Someone will just step up, you don’t need to pick someone. The danger here is that you are leaving the choice in the hands of a judge who has never met your children, and you aren’t around to say “no, wait, that’s not who I would have wanted!”  Be the parent that your children need you to be, and make a choice. Then take the steps needed to put that choice in legal documents so that you are choosing for your children, and not leaving it up to chance.

3. You’ve written a letter or an email with your wishes, and think that’s enough. Do you think that the file hidden in your computer is sufficient? Or that the letter on pretty stationary in your desk will be honored by the police if they came to your house following an accident with you and your spouse? While it is good that you have thought this through and made a decision, Massachusetts has a legally binding guardianship proxy form, it’s easy to fill out and makes your wishes clear. Take the next step and make it legal.

4. You don’t have to ask the guardians, since they will probably never need to serve and you don’t want to have that conversation. The danger here is that you won’t be around when they need to serve, so you should talk to them now about your wishes (in addition to writing them down.) Make sure they want that role, and assure them that you’ve appointed alternates to serve if they can’t, and let them know that they should alert you if they don’t feel they are able to serve in the future (due to a divorce, addictions, moving out of the area, etc.).  Also let them know that you have provided financially for your children so that they do not think they will need to do so. In addition, if your child has special needs make sure they feel comfortable taking on the additional responsibilities.

Want to download a free worksheet to help you select guardians? Click here.

Read the original article here.

The process in my office usually looks like this:

1. Call the office to make the appointment for an initial visit.  At that time, we’ll get a little information from you and then send you out a Client Information Form that will help you put together some information.  It’s not a test, so if you don’t get the whole thing filled out don’t worry.

How to avoid a hold up at this step: Don’t put off calling just because you haven’t made decisions about your plan.

2. The initial meeting. This is where we talk about your family, your goals, your current plan, and yes, your budget, so that we can come up with the best plan for you and your family.  We’ll go over things like what assets you own, how they are held,  who you want to inherit them. We’ll also talk about the people you want making health care decisions for you and who you want to name as guardian of your minor children.

It’s ok if you haven’t finalized these things before the meeting. Talking about the various roles and what’s involved can help you narrow down your list.

How to avoid a hold up at this step:  Don’t postpone the meeting because you haven’t filled out the entire intake form.  Do talk to your spouse or family so that you can make some preliminary decisions before the meeting.

3. You Decide. After the initial meeting, I generally send out a letter that lays out what we talked about, the preliminary plan, and any decisions that still need to be made.  I also let you know what the final fee is (which we would have talked about at the meeting, also.)  At this point, you can make changes to the plan and send in the signed agreement, along with part of the fee.

How to avoid a hold up at this step: Call the office if you have questions about the letter, and send it back in a timely fashion.

4. Review of Drafts. I will generally send out drafts to my clients so they can make sure the appropriate people are named as their agents, and that the distributions in their Wills and Trusts are the way the want them.  Changes can be made at this point if necessary.

How to avoid a hold up at this step: Open the envelope and review the drafts. Call the office if you have questions and don’t get bogged down by the “legalese.” I go over the documents in details before you sign them.

5.  The Signing Meeting. At the signing meeting, you’ll review the documents one more time, I’ll go over in detail the legal terminology and answer any questions you have.  Once everything has been reviewed, I call in the witnesses.  They are there to make sure that you are signing without any undue influence, and that you are over 18 and of sound mind.  They will watch you sign the documents, and then they sign the documents.

Then, I give you your original documents and a set of copies and I keep a set of copies. The remainder of the fee is payable at that point.

The whole process from start to finish can be a couple of days (for someone with an urgent health situation who can’t wait), a couple of weeks (for someone who is traveling soon and has no plan in place) or a couple of months (for someone with more complex decisions to make, or advisors to consult.)  Usually, it’s about 4 – 8 weeks total, after the first appointment.

As you can see, the process isn’t that scary, and there’s a lot about it that you control, including picking up the phone and making the first phone call.

Then my attorney hat went on and I wondered, “how many of these parents have taken the legal steps to name guardians for their children to make sure that their children would never be in the care of someone who is not on their safe list?”  I’m going to guess that the majority had not. I’m going to guess that the majority have not even discussed their safe list with anyone beyond their spouse.  This means that if something were to happen to both parents, there would be no one around to say “this is where they wanted the kids to go if something happened. Here are the guardianship nomination papers. This is under control.”

Do you have a “safe list” in your head – who is safe enough to watch your children, drive your children, have sleepovers with your children?

If you have a safe list, have you taken the legal steps necessary to make sure that only people on your safe list would be legally responsible for your children if something were to happen to you? Have you signed an Emergency Guardianship Proxy? Have you signed a Will nominating guardians? Have you told the people you nominated that you have given them this responsibility? Have you left that information for your babysitter in case you don’t make it home?

Without these protections in place, the Court will have no guidance if they need to appointment guardians for your children. They may even appoint someone who does not meet your criteria as an appropriate guardian, because they appear to be suitable and they stepped forward. Or the court may appoint a family member, because they are family, who does not know your children as well as a friend and whom you would never have selected.

But if you don’t turn your safe list into a legal document, it isn’t going to do anyone any good when it is most needed – when you aren’t there to talk about it.

If you are ready to put a plan in place, click here to think about what options might work for you.

(This post was originally written in November of 2010. The original blog post about the “safe list” was on Damomma.com, but has been archived and is no longer available.)

One of the things to keep in mind is that your estate plan can be designed the way you want it to be. There is no “normal” way to do things that you have to follow. You can tailor your plan to meet the needs of your family, whatever the branches on the tree look like.  What follows are some of the things I’ve seen come up frequently.  You can discuss these as a family, and then bring any outstanding issues to the meeting with your attorney.

• If the children’s ages vary by 5, 10 or more years, consider that the younger child may need a larger inheritance left to them if the parents pass away while they are still young, since they will not have had the benefit of being supported by their parents during their growing years.
• Do any of the children have special needs that must be taken into account?
• Do you want different people serving as trustee for minor children who have different sets of parents?
• What other inheritances might the children be expecting from another branch of the family?
• Who do you want to serve as guardian of the minor children? Do different children need different guardians named?
• If there are different guardians being named for the minor children, have your wishes been laid out about keeping the siblings in touch with each other? Do additional funds need to be set aside to provide for the siblings to visit one another?
• Do funds need to be preserved for eventual inheritance by the children if a biological parent passes away first and a step-parent is inheriting most of the property?

If you don’t have certain answers to these questions, or if you’ve never even thought of these issues, or the thought of having this conversation with your spouse makes you really uncomfortable, don’t let that stop you from planning. Your attorney can walk you through the different scenarios and help you make the right choices for your family.  Your attorney can also walk you through what  would occur if one or both parents passed away, and what that would look like in terms of inheritances for the different children.  And the attorney can let you know what would occur if you don’t put a plan in place at this time.

The main thing is to have a plan in place that you construct, not to leave it up to the Courts and your families to attempt to cobble together in an emergency.  The peace of mind that comes with planning is worth the time it takes and possible discomfort that can come with talking about these things.

1. Who is the person you want to serve as guardian of your children in the event neither parent is available? If you are naming a couple, indicate whether one or both of them could serve alone.

2. Who is the person or person you would like to name as alternate guardian in the event the primary guardian is no longer able to serve?

3. Who are the primary and alternate people you would want handling any funds left to your minor children? (This person is called the “Trustee.”)

4. Think about at what ages you would like your child to receive an outright inheritance (assuming that funds they inherit before that age are being used for their education, medical care and other expenses.) Many people choose a staggered distribution of ages 20/25/30 or 25/30.  You can choose the age or ages you prefer.

5. Does your child have any special needs that may require the use of public benefits at some point in their life?

In general, if you had wills, the attorney will draft new wills for each of you which nominate guardians for your children upon your deaths, provide for someone to manage any funds that are left to your children, and specify how those funds should be managed via a Testamentary Trust (a trust created in a will).  The attorney should  also draft an Emergency Guardianship Proxy which will nominate guardians for your child in the event of your incapacity or other unavailability (such as traveling without your child). You may also want to think about drafting a Living Trust at this point to manage funds during your lifetime and provide for the continued management and distribution after your death.

Not making these changes will leave the guardianship nomination unsettled, with the decision being made by a judge, not you.  In addition, if you don’t specify an age for your children to inherit funds outright, they will have access to all funds at age 18. In addition, it is possible that a conservator would need to be appointed by the court to handle funds left to a minor child, if you don’t name a trustee to play that role.

A little planning and action on your part can save lots of time and money in the event of a crisis, and will help you sleep better at night (even if your new baby doesn’t.)

When we were little I remember knowing my aunt and uncle were our “godparents.” We though this meant that if something happened to our parents, we’d go and live with them. (I also remember thinking that living with our cousins sounded very exciting, not quite realizing what would have occurred to make that necessary.)  These days, I’m often asked by people whether their selection of godparents for their children is the same as naming legal guardians for their children.  The answer is “no.”

A godparent is someone who sponsors the child’s baptism. This is mainly a religious role, not a legal one. While the person you may choose as your child’s potential guardian is the same as their godparent, there are additional legal steps you need to take to formalize it.

If your child has a godparent, but no guardian, named and something happens to both parents, the selection of a godparent may be used by the Court to help determine the parents wishes. This may or may not be a good thing. The person you selected as godparent may not be the person you want to actually raise your children if something happens to you.

Here are some of the issues with thinking that your selection of a godparent is sufficient for protecting your child:

• A godparent is generally chosen once and doesn’t change. You can change your nomination of guardian as your child’s life, or the guardian’s life, changes, to make sure you have the most appropriate person named at all times.
• Many people will choose a different godparent for each child, but will want one guardian to care for all of their children.
• The responsibilities of being a godparent are quite different than being a guardian. The godparent may not want that responsibility.

The best way to make sure that your child is protected in the event neither parent is able to care for them, and that your wishes are honored is to have an attorney prepare the guardianship nomination papers that apply in your state, and to write a will that nominates guardians for your children.  The relief it brings to have it done is worth the time it takes to make your decisions and get in touch with the attorney.  For folks in Massachusetts, this can be done with me via online communications, so that it fits into your schedule.

But, often clients hear me mention a trust for their children and they immediately think of Paris Hilton or some other ne’er do well child living off their inheritance.  “Oh, no, we don’t need a trust for her, we don’t have that much.” Or simply “no, I don’t think we want that.”

It’s at that point that we slow down and I remember how I feel when my computer guy starts talking over my head, and I go back to the Trust 101 talk.  I explain how a minor child cannot inherit property in Massachusetts, and that by naming someone (the trustee) to hold the property for the child (the beneficiary) the family can avoid having to have the Courts get involved and the accompanying time and expense that brings with it.

Depending on the family’s wishes and their budget, it may be that the trust language can be crafted into the Will to make sure that the child’s inheritance is protected when necessary and accessible when necessary.  In other situations, a more complex special needs trust may need to be drafted to make sure that vital benefits are not lost.  Most families will fall somewhere in between.

Having a trust does not mean that you are rich or stuck up or that your children will become reality TV stars. It just means that you are protecting your children and making sure that the inheritance you leave them is handled by the people you trust with the privacy you want.

No matter which parent is in my office, they are inevitably going to ask me “Does it even matter if I choose a guardian? Won’t her other parent get custody anyway?”  In most situations, yes, the other parent will be the natural guardian of the child.  However, I still advise my clients to select a guardian and at least one alternate to serve in the event that both parents pass away.

There are a couple of reasons for this.  One is, you never know what will happen.  Your former spouse could predecease you and you want to be sure you’ve nominated someone.  You could predecease your former spouse, but in the event that he or she passes away while your child is still a minor and there is no other document nominating a potential guardian, yours would be used by the court to determine what the parent’s intent was for their child.

Additionally, if you and your former spouse can agree on guardians to serve if neither parent is around, you can both make provisions to name that person, which again provides valuable guidance to the court.

“It doesn’t matter anyway” is an easy excuse to use to put off making a plan, but doesn’t your child deserve better than that?