Many parents do not realize that if circumstances suddenly change, as in unforeseen death, incapacity, or some other circumstance prevents their ability to care for their children, a legal guardianship process will be instituted in which a caregiver is selected by a California probate court. For example, if a parent were arrested while her child was staying at a friend’s house, those other parents would not be able to prove that they had legal custody of the child. The police would then contact Child Protective Services, who would take custody of the child until someone could be found with the documented legal authority to care for the children. This could result in the child being placed in foster care until the issue is resolved by the probate court.

At court, each family member will have equal priority in determining who will become a guardian, even if your wish is that a reliable friend of the family take care of the children. All of us have family members that are not favorable candidates for raising children – yet those same family members may have that responsibility, even if it is against your wishes. Nobody likes to contemplate both parents dying simultaneously in a car accident, but if you fail to plan accordingly, your children’s future could be adversely impacted.

Some advice on how to choose a guardian can be found here, and include the following questions:

Whose parenting style, values, and religious beliefs most closely match your own?
Who is most able to take on the responsibility of a caring for a child — emotionally, financially, physically, etc.?
Who does your child feel comfortable with already?
Will your child have to move far away, and will that pose any problems?
Does the person you’re considering have other children? If so, would your child fit in or get lost in the shuffle?
Does the person have enough time and energy to devote to your child?

After you have made your decision, you must discuss the decision with the guardian, so that you can gauge that person’s willingness to perform the role. After selection, you must memorialize it in a legal document such as a will or trust. If you have life insurance or an estate, you can divide the duties between a guardian of the person and a guardian of the estate. Trusts are especially well suited to limiting the disbursements to children – such as providing only for the child’s health, welfare and education – while also protecting the assets in the trusts from the child’s creditors (what is called a “Spendthrift Trust”).

Filed under: Estate Planning - Generally, Probate, Probate Litigation, Trusts, Wills, Wills and Trusts