Choosing a legal guardian who can raise your kids if you are unexpectedly incapacitated or pass away can be a daunting and difficult challenge. There are many things to take into account such as parenting styles and the potential guardian’s ability to love and take care of your children.
These are just some of the questions we believe every parent should answer before naming a guardian.
Where will your children live? Many parents desire to keep their children in a familiar environment if something unfortunate happens. It’s not unusual for parents to put instructions in their estate plans regarding the cities or states they want their kids to be raised in if mom or dad passes away. If the geographical location of where your kids will be placed is important to you, be sure to make this known to your Davidson County will attorney when creating your plan.
Are your children familiar with the potential guardian? It is important that your children are comfortable with the guardian you are about to choose for them. If you are selecting a guardian that lives far away, you may want to consider ways to begin cultivating a relationship between your children and the potential guardian before it’s needed. Naming a temporary guardian is also important in such situations. This will ideally be a person that lives close by and can help ease the transition to your kids relocating to their permanent guardian’s home.
Is your potential guardian prepared to care for your children? There are many factors that could fall under this category, but it is important to make sure that your guardian is emotionally, physically, and financially prepared to care for your child/ren. For example, you may want a grandparent to become guardian, but their age and their own financial and/or medical needs may make serving in this role difficult for them. Don’t forget to take their point of view into account when making your selection.
Do any of your children need special care? If you have a child with a mental or physical disability, it could take special knowledge and resources to care for your child. It is important to make sure that the named guardian would not be overwhelmed by this responsibility and that they are prepared to care for your child in whatever way that your child may need.
Have you discussed this choice with your potential guardian? It is very important that you ask your potential guardian if this is a responsibility that they can take on. You will also want to talk about your desired path for raising your child/ren to make sure that you are in agreement and that your wishes will be followed.
As parents, you spend a lot of time planning the best future for your children. Make sure that your planning includes naming a legal guardian should you become unexpectedly incapacitated or pass away. You should be the one making that decision – not the courts. Schedule a call with our Davidson County will law firm today, so you can have the peace of mind knowing your children will be cared for by the person you want, in the way you want if anything happens to you.
Here at Graceful Aging Legal Services, we are passionate about helping parents name legal guardians for their children. It’s a critical step that allows parents to document the people they want and trust to raise their kids if they are incapacitated or unexpectedly pass away.
However, many parents just assume that the person who takes the children into their custody will also manage the children’s inheritance, but that isn’t always the case. In the most simple cases, estate planning for married couples is easy. You leave everything to your spouse, and the other parent will take care of the children.
However, as we all know, family life is rarely simple. What if you are single and there is no other parent to step in? What if your spouse is a “bonus” parent to your child? What if your child’s other parent has lots of love to give them but has trouble with their own finances? What if you and the other parent pass away at the same time? Taking care of your family through estate planning is about hoping for the best, but having a plan in case the worst happens.
What many people don’t realize is that you can’t just “leave money” to minor children. There has to be an adult who holds onto it for them until they turn 18. The person who is named as your child’s custodial guardian and financial guardian can be the same person, but they don’t have to be. If there is another parent involved, they are usually the default custodial guardian but if you are providing the money, you get a say- as long as you do it in advance of your incapacity or death.
If funds are left to a child outside of a trust, the Court will need to be involved in formally appointing a guardian for the child(ren)’s property. The guardian will be required to provide annual accountings to the Court, as well as purchase an insurance policy (known as a court bond) to secure the child’s property. If the parents have nominated a guardian, the Court will usually say a blessing upon that choice as long as it is in the child’s best interest.
In the case of a child who is 18 or older when a parent dies, they are able to receive their inheritance outright. While this might be less complicated than having a guardian appointed, it creates different issues. Think about the things you wanted to spend money on as a young adult? When did you truly become responsible with your money? What value did you place on money given to you versus money that you earned? If you’re concerned about any of that, you should consider raising the age at which your child gets their funds distributed if you do not want to take the risk that your child’s inheritance will be mismanaged, lost, or squandered on things like fast cars, clothes, and lavish trips.
Utilizing a living trust is the best way to put “speed bumps” and “checks and balances” around your children’s inheritance so that they do not receive a lump sum of money outright before they are mature enough to handle it. Again, you will be able to raise the age or lay out key milestones in which the child(ren) receive their money and specify a trustee who will again oversee the distribution of funds for your child(ren) according to your wishes for their future and how their inheritance is to be spent (i.e. on a college education, first house, wedding). While guardianships are overseen by the Court, trusts are handled within the family.
Luckily, all of this is easy to do if you work with a local qualified guardianship or create an estate plan attorney. In our office, we have a system that walks parents step-by-step through the decision-making process so that they are able to choose the best people to serve as their child’s property manager and/or legal guardian.
Our Nashville law firm is here to serve you. Schedule an appointment to talk with us so you can begin the process of legally documenting who will serve in these two very important roles in your children’s lives if the unthinkable happens.
From a legal standpoint, moms and dads don’t have a lot of rights after you turn eighteen. But we often rely on our parents more than we realize, something I was jerked into remembering during my junior year of college when I was rushed to the emergency room and soon told that the surgical team was ready for me. Ummmm….can’t I call my mom first???!!!
Fortunately my situation worked out, but as a lawyer, I can’t help thinking about what if I had not been awake to call my parents. What if I needed more extreme medical treatment and couldn’t tell the doctors what I wanted?
This is where you can learn from my mistakes. Get your legal shit together before you head off to college. Or after. But as soon as you can. I will even help you get everything completed by video call.
As a bona fide adult, you need a minimum of three documents in case of an emergency:
Healthcare Power of Attorney– This document allows you to appoint someone you trust to be your health care agent if you ever become incapacitated and unable to speak for yourself.
Financial Power of Attorney– A financial power of attorney allows you to give someone else permission to access bank accounts and act financially on your behalf if an emergency occurs. That means paying bills, completing financial aid or loan applications, dealing with insurance companies, and other ways that, well, adulting sucks. You’ll need to choose whether you want this to become effective immediately or only when you are unable to handle your own business.
Signed HIPAA Form– Now that your parents don’t have access to your medical records, you might want to consider authorizing someone to see them. Often family is a good go-to for all things medical (see: hereditary conditions) but you can name anyone-and everyone- you’d like. Mom, Dad, Brother, Best Friend, Fifth Grade Teacher? If you love them enough to share your blood panel results, then a HIPAA waiver is no biggie.
If you wanna get fancy, you can also sign a FERPA waiver to let your trusted adult have access to your educational record. It’s the grown-up version of the school sending home your report card to show how smart you are. 🤓
These are your documents, so you can name any adult you want to act in case you can’t (or don’t want to). In most cases that’s a parent, but let’s be real. Not all parents are created equal. Sometimes your “trusted adult” is your aunt, your neighbor, or your cousin. Whoever you name, it should be someone you trust with your life and your 💵 bank account.
When you’re ready to start getting your adult shit together, feel free to book a call with us or shoot us a text. The cost for all of these documents together is $500 through our office, and I bet mom and/or dad would even be willing to foot the bill if you show them how responsible you’re being!
Nashville guardianship lawyers are asked this question nearly every day! The answer is…maybe. Before you begin to worry, let us explain.
By law, parents are the natural guardians of their children, regardless of the parents’ relationship. When unmarried or divorced parents have a formal parenting plan and one party passes away, that parenting plan is no longer valid. In most cases, the child’s permanent custody would revert to the surviving parent.
What If the Surviving Parent is “Unfit?”
If there are concerns about the fitness of a surviving parent, the State of Tennessee has a provision where a third party can step in and apply for guardianship of a minor child. For example, a grandparent may be compelled to apply for guardianship if they feel the surviving parent is not capable of raising the child(ren). Unfortunately, in these circumstances, the burden of proof is on the grandparent (or other petitioner). The third-party would have to prove in court that the surviving parent is unfit, which could result in an expensive and lengthy custody battle.
You Can Still Have a Say
As a parent, you can also take steps to make your wishes for your children known in your will. If you believe that your ex is unfit or unable to care for your children in your absence, you can use your estate plan to spell out your concerns and offer up alternative choices for guardians. After your passing, a judge will be given the opportunity to review your wishes and ultimately decide if choosing a guardian other than the biological parent would be in the child’s best interest.
Even if your ex were to obtain physical guardianship over your child(ren), that does not mean that they have to get any money that you have set aside to care for your child in the event of your death. Many people use trusts to control how any inheritance is managed rather than potentially letting the other parent gain control over the child’s financial assets. A well drafted trust allows you to manage your child’s financial future even after you are gone.
What if parental rights were terminated?
If the surviving parent has previously had their parental rights terminated, they will not be considered for guardianship of the child(ren) after the death of the other parent. In these cases, it is extremely important for the parent who retains rights to have an estate plan that spells out exactly who should raise the child and what resources are to be used to do so if something happens to mom or dad.
Get Informed to Be Empowered
While guardianship questions are rarely black and white, the solution in almost all instances is to create an estate plan. There is nothing more important in life than protecting our children’s future, and a straightforward estate plan can give you the peace of mind that your child will be protected no matter what!
If you have questions or you are ready to get started with creating legal documents to protect your family, please schedule an appointment with our Nashville guardianship lawyer, April Jackson.
From a legal standpoint, parents don’t have a lot of rights after you turn eighteen. But we often rely on our families more than we realize, something I was jerked into remembering during my junior year of college when I was rushed to the emergency room and soon told that the surgical team was ready for me. Ummmm….can’t I call my mom first???!!!
Fortunately my situation worked out, but as a lawyer, I can’t help thinking about what if I had not been awake to call my parents. What if I needed more extreme medical treatment and couldn’t tell the doctors what I wanted?
Here’s what you need…
This is where you can learn from my mistakes. Get your legal shit together before you head off to college. Or after. But as soon as you can. I will even help you get everything completed by video call.
As a bona fide adult, you need a minimum of three documents in case of an emergency:
Healthcare Power of Attorney– This document allows you to appoint someone you trust to make decisions if you can’t communicate with your medical providers.
Financial Power of Attorney– A financial power of attorney allows you to give someone else permission to act on your behalf on financial matters. That means paying bills, completing financial aid or loan applications, dealing with insurance companies, and other ways that, well, adulting sucks. You’ll need to choose whether you want this to become effective immediately or only when you are unable to handle your own business.
Signed HIPAA Form– Now that your parents don’t have access to your medical records, you might want to consider authorizing someone to see them. Often family is a good go-to for all things medical (see: hereditary conditions) but you can name anyone-and everyone- you’d like. Mom, Dad, Brother, Best Friend, Fifth Grade Teacher? If you love them enough to share your blood panel results, then a HIPAA waiver is no biggie.
If you wanna get fancy, you can also sign a FERPA waiver to let your trusted adult have access to your educational record. It’s the grown up version of the school sending home your report card to show how smart you are. 🤓
Who should you name?
These are your documents, so you can name any adult you want to act in case you can’t (or don’t want to). In most cases that’s a parent, but let’s be real. Not all parents are created equal. Sometimes your “trusted adult” is your aunt, your neighbor, or your cousin. Whoever you name, it should be someone you trust with your life and your 💵 bank account.
When you’re ready to start getting your adult shit together, just text the word ADULTING to 615-846-6201. The cost for all of these documents together is $500 through our office. Your family might even be willing to foot the bill if you show them how responsible you’re being!
