Who Will Care For Your Child When You Cannot?

As a parent, you are responsible for the care of your minor child. Your responsibilities include everything from getting them up for school, making sure they are fed, and providing for other basic needs. However, what would happen if you and your child’s other parent were unable to care for them?

It is important to note that if something were to happen to you, your child’s other parent is most likely going to have full authority and custody of your child, unless there is some other reason why they would not have this authority. So in most cases, estate planning is going to help develop a plan for protecting your child in the event that neither parent is able to care for them.

What If You Die?
When it comes to planning for the unexpected, the most important decision to make is who would act as guardian in the event both parents die. This is a critical step toward ensuring that your child’s future is secure.

Without an Estate Plan
If you and your child’s other parent die without officially nominating a guardian to care for your child, a judge will have to make a guardianship decision. The judge will refer to state law, which will provide a list of people in order of priority who can be named as the child’s guardian—usually family members. The judge will then have a short period of time to gather information and determine who will be entrusted to raise your child. Due to the time constraints and limited information, it is impossible for the judge to understand all of the nuances of your family circumstances. However, the judge will have to choose someone based on their best judgment. In the end, the judge may end up choosing someone you would never have wanted to raise your child to act as your child’s guardian until they are 18 years old.

With an Estate Plan
By planning proactively, you can nominate the person you want to raise your child in the event you and the child’s other parent are unable to care for them. Although you are only able to make a nomination, your choice can hold a great deal of weight when the judge has to decide on an appropriate guardian. The most common place for parents to make this nomination is in their will. This document, which becomes effective at your death, also explains your wishes about what will happen to the assets you leave behind. Some states also recognize a separate document in which you can nominate a guardian that is referenced in your will.

What If You Are Alive But Cannot Manage Your Own Affairs?
Although most of the emphasis is on naming a guardian for when both parents are dead, there may be instances in which you need someone to have the authority to make decisions for your child while you are alive but unable to make them yourself.

Without an Estate Plan
Not having an incapacity plan in place that includes guardianship nominations means that a judge will decide who will be appointed, with no input from you (similar to the determination of a guardian if you die without a plan in place).

With an Estate Plan
A comprehensive estate plan can also include a nomination of a guardian in the event you and the child’s other parent are incapacitated and unable to manage your own affairs. If you cannot manage your own affairs, you likewise will be able to care for your minor child. Because a last will and testament is only effective at your death, a nomination for a guardian in your will may not be effective when you are still living. However, a nomination in a separate document that anticipates the possibility that you may be alive and unable to care for your child can provide great assistance to the judge when evaluating a guardian. Depending on the nature of your incapacity, this guardian may only be needed temporarily, with you assuming full responsibility for your child upon regaining the ability to make decisions for yourself.

What If You Are Just Out of Town?
Sometimes, you travel without your child and will have to leave them in the care of someone temporarily. While you of course hope that nothing will go wrong while you are away, it is better to be safe than sorry.

Without an Estate Plan
Without the proper documentation, there may be delays in caring for your child if your child were to get hurt or need permission for a school event while you are out of town. The hospital or school may try to reach you by phone in order to get your permission to treat them or allow them to attend a school event. Depending on the nature of your trip, getting a hold of you may not be easy. Ultimately, your child will likely be treated medically, but the chosen caregiver may encounter additional roadblocks trying to obtain medical services for your child, may not be able to make critical medical decisions when needed, or may make decisions for your child that you would not have.

With an Estate Plan
Most states recognize a document that allows you to delegate your authority to make decisions on behalf of your child to another person during your lifetime. You still maintain the ability to make decisions for your child, but you authorize another person to have this authority during the time you are not available. This document allows your chosen caregiver to make most decisions on behalf of your child, except for consenting to the adoption or marriage of your child. Depending on state law, the name of this document will vary and will be effective for a defined period of time. Because this document is only effective for a certain period of time, it is important to update it regularly.

Let Us Help
Being a parent is a full-time job. We want to make sure that regardless of what life throws at you, you and your child are cared for. Schedule time with us and learn more about how we can ensure that the right people are making decisions for your child when you cannot.