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Protecting Your Children from the Uncertainties of the Future

July 2, 2014
  By Daniel H. Stoner, Esq.

In my career as an attorney I have seen many unfortunate situations arise when individuals and businesses fail to plan for the future and protect their interests. However, in my opinion the most tragic of these situations are when parents fail to properly plan for their children’s wellbeing in case future uncertainties arise.

Estate planning is important for all families, but the unfortunate fact remains that far too many people never get around to developing a solid plan of protecting their loved ones if something were to happen to them. However, the minimal time and effort it takes to draft an appropriate estate and guardianship plan can give people the peace of mind of knowing that whatever the future may throw at them, their children and loved ones are protected.

Naming a Guardian for your Children
One of the most important things you can do for your children is to have guardians in place to care for them if you are not around to care for them yourself. Every parent should have some kind of Guardianship Plan in place for their children. If you are married, or if both parents have custodial rights, the surviving parent will most often take custody of the children if one of the parents dies. However if both parents die, it is very important that your children have a guardian who can take care of them.

Nearly everyone is familiar with Wills and their purpose. A Will is a document which represents the testamentary intent of the person who drafted it. When most people think of Wills, they think of an older individual directing how their assets will be divided amongst the people they leave behind. However, Wills also play an important role in naming a guardian for children. By naming a guardian in your Will, you can have someone set in place to care for your child or children if something were to happen to you. Without a proper guardian in place, your child will not have a guardian set up, which could lead to bitter custody battles amongst surviving relatives, or even worse, the risk of your child becoming a ward of the state. In my practice I have seen many terrible scenarios occur from parents failing to put a proper Will in place which names a guardian.

Standby Guardianships
While Wills are important for naming guardians if the parents are no longer living, what happens if a parent is instead severely debilitated in an accident and is still alive, but not able to care for a child? In this scenario a Will cannot apply, as Wills only become effective upon the death of the person who drafted it. However, this does not mean that parents are without options for planning for such events. Parents who want to make absolutely sure that their children are protected should consider a Standby Guardianship Plan.

A Standby Guardian is a Guardian who is named to take custody of children in a number of different scenarios called “triggering events”. The parents may name a variety of “triggering events” in which a Standby Guardianship can take effect, however the most common ones are death and disability. Like a Will, a Standby Guardianship can name a guardian to take custody of a child in the event of the death of the parents. However, unlike a Will, a Standby Guardianship can also take effect for things like incapacitation and disability.

To give an example of how a Standby Guardianship works, say a married couple gets into an auto accident. If both parents die in the accident and have a Will, the guardian named in their Will can take custody of their children. However, if only one parent dies, and another parent is in a coma, the Will cannot take effect, and the guardian named in the Will cannot take custody of the children. This can lead to unfortunate situations such as custody battles amongst relatives, which can greatly intensify an already unfortunate situation for the children. However, if the couple has designated a Standby Guardianship plan that names a guardian in the event of incapacity(such as a coma) as well as death, the guardian may be able to take custody of the children immediately, which will greatly reduce the uncertainty lying ahead for the children.

Because of this, a Standby Guardianship Plan is the most complete and robust mechanism under the law that parents can use to protect their children from all of the uncertainties of the future.

Financial Planning
It is also important that parents create financial plans to help their children as well. The most common way of doing this is through purchasing life insurance. Life insurance is a payment which is deliverable upon death to the named beneficiaries. The two kinds are term life insurance (insurance which will give out a payment if the policyholder dies within a certain timeframe) and whole life insurance (insurance which will pay out on the death of the policy holder no matter when he or she may die). In general term life insurance will be cheaper. Parents should also consider having the life insurance going into a trust which will be given to their children on certain conditions. This may be preferable for parents who do not want their children being handed a large sum of money at a young age.

It is also important to have a trustee or guardian named to manage and protect your child’s inheritance. You should name someone that you consider trustworthy and competent.

While this is a brief overview of the ways that estate planning can be used to protect your children, it should help inform you as to your options. Far too often parents fail to have a proper plan in place, and the results of this can be devastating to children, making an already tough time even harder for them. Every parent should have a guardianship and estate plan in place. This is especially important for single and unmarried parents. If you wish to have an estate or guardianship plan in place, please contact a professional to see what they can do. The little time it takes to draft an appropriate plan can give you the peace of mind to know that you have done everything to ensure that your children and your loved ones are protected to the fullest extent allowed under the law.


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