Who Will Take Care of Your Child If You Die?

Our children are our future.  The health, safety, and comfort of our children are our primary concerns.  We plan and save for their future education; we make sure they are physically safe; we take them to the doctor if they get sick and we worry about their future incessantly.  Knowing all of this, it still amazes me how many of my clients never plan for their minor children’s welfare upon their death.  I recently prepared a living trust for a couple expecting their third child and I asked them who they had designated to take their children if they were to die; the wife stated that she didn’t like to talk about it.  I asked, “If you don’t talk about it and make plans, who will?”

No parent wants to think for a minute that they will ever leave their children unexpectedly, but part of responsible parenting is planning for that exact scenario.  So I ask again, who will make sure your children are taken care of if you die?

Surprisingly, the majority of parents do not have any plan in place for the care and custody of their minor children in the event of death.  Many of the clients I come across tell me that they would have made plans sooner, but they struggled with the big question – “who do we trust to take care of our kids if we die?”  

So, now you may be asking yourself:  “what can I do?”  If you are married, start by discussing this issue with your spouse, rather than avoiding it.  As tough as it may be to contemplate your own mortality, issues such as this are necessary to consider.  Just think of the peace of mind you will have once you have decided on the person to care for your child if he or she is ever left parentless. After you have decided, talk to the person you have chosen.  Make sure that this person is comfortable with such a big responsibility.

Once you have decided who will take your kids if you die, you must put your decision in writing.  California law allows a parent or parents to nominate a person to take care and custody of your child in the event of death or incapacity.  Under California law, the courts give great consideration to a guardian nominated by a parent.   A nomination must be written, and signed by the parent.  Generally, in California, a nomination of a guardian is included in the provisions of a Last Will and Testament.  However, a nomination can be in any signed writing.  

When no nomination exists, a judge must decide who your children will go to.  Without any written nomination of a parent, the court will be left with little direct evidence of who the parent would have wanted to love, support, and raise the child.

In California, guardianships fall into two categories: guardianship of the person and guardianship of the estate.  A guardianship of the person allows a person appointed by the court (a guardian of the person) to make decisions on a minor’s behalf, just as a parent would.  In other words, a guardianship of the person gives a guardian general custody of a child, and all the decisions that accompany such a position, except for any financial decisions.  Alternatively, a guardianship of the estate gives a person appointed by the court (a guardian of the estate) the ability to make any financial decisions on behalf of the minor child, as well as manage any money the child may have in his or her name.

As you can see, the stakes are way too high to ignore the issue of choosing a guardian.  Do something now.  Who else is in a better position to decide who will take your kids if you die?  Guardianship nomination is the most basic form of estate planning and our Newport Beach office is conveniently located to assist you.

Bradley S. Erdosi is an attorney and founder of the Law Offices of Bradley S. Erdosi.  His practice focuses exclusively in the areas of estate planning and probate.  For additional information, please visit www.willsandtrustslaw.com or by telephone at (949)261-5777.
Special note:
This article is intended only for the purpose of providing general information and does not constitute legal advice.  By providing this general information sheet we are not establishing an attorney-client relationship and nothing contained in this article should be construed to necessarily be applicable to your unique situation.  You should always engage the services of an attorney to determine which, if any, legal solutions are right for you.