The last thing you probably want to think about is what would happen to your children if you and or your spouse should die unexpectedly. However, this can and does happen, and parents may want to plan for this in the unlikely event that this should occur. Children are minors until age 18, and if left without their legal parents, they must have a guardian to take over their care.
Jump ahead to these sections:
- Who’s Responsible for Arranging Care for a Minor Child After Their Parent or Guardian Dies?
- How to Arrange for Care if the Parent(s) Made a Plan for Their Child(ren)
- How to Arrange for Care if the Parent(s) Didn’t Make a Plan for Their Child(ren)
Other complicating circumstances could also occur if you have designated a guardian for your children, even with a plan in place. Perhaps that person is no longer alive or no longer wishes to assume that responsibility should you die. That’s why it is so vital to revisit any advance plan and will yearly so that you can update as necessary.
Below we go through some possible scenarios to help you prepare for the care of your children and what will happen if you have not planned.
Who’s Responsible for Arranging Care for a Minor Child After Their Parent or Guardian Dies?
The court system is ultimately responsible for arranging care for a minor child after their parent or guardian dies. It is important to find the will and ascertain if there is a designated alternative guardian (in the case of the guardian dying).
The court can then approve the alternate guardian or make other arrangements to appoint someone else. The court has the responsibility to ensure that whoever takes over the care of a minor child has their best interest at heart.
The court may consider these factors in approving a guardian when you or the appointed guardian dies:
- Will the person who petitions for guardianship or the court-designated person provide the best care for the child or children?
- What is the nature of the relationship of the proposed guardian to the child?
- Do the children have personal preferences that should be taken under consideration?
- What is the moral fitness and competency of the proposed guardian?
- Does the proposed guardian have the financial resources to support additional children?
- If the children have the capability to weigh in, what are their wishes?
If you are in the process of deciding who to choose as guardian in the event you and your spouse die prematurely (guardianship would most likely go to a surviving spouse if there is one), make this choice deliberately and carefully. You may want to consider the following when making your decision:
The person you select must be willing and able to be a guardian
Becoming a guardian of a minor child or children is an enormous responsibility. Take an honest look at the person’s life, their other responsibilities, and emotional stability. Ensure that they can understand the duties entailed in assuming the care of your children.
If there are not sufficient financial assets to leave for the care of the children, make sure the person knows this and is still willing to assume legal and financial responsibility.
Does the person know your children well?
If there is no personal relationship with your children, that doesn’t mean it won’t work, but it would be far better to have a positive relationship between the proposed person and your children.
But in the end, choosing the most responsible and stable person may take priority over personal relationships.
What about finances?
Turning the care of your children over to another person is one thing, but giving them adequate resources to manage that care is another.
Have you set aside money for their care? How are assets managed, and under what conditions? Are there available funds that may only be released to children when they reach age 18?
Are they responsible and trustworthy?
These qualities might seem obvious, but make sure you take a sober look at the person you choose and take off the rose-colored glasses! No one is perfect, but you want someone who has demonstrated these characteristics.
There is also the possibility that another family member could challenge your proposed guardian. The court would consider the viability of a petition to appoint someone other than the named person in a will to replace the guardian. To challenge your designated guardian, another interested person would need to present evidence showing that the guardian is not appropriate.
Are there shared values or religious beliefs?
For people who have very strongly shared values and religious beliefs, this is an important consideration.
You may not be comfortable appointing a guardian who is far outside your preferred norms or holds religious beliefs that are counter to yours.
How to Arrange for Care if the Parent(s) Made a Plan for Their Child(ren)
As the person responsible for the care of someone else’s minor children, you have hopefully made a plan for their care in the event that their parents die. If you haven’t, then start to consider these steps.
1. Consult an attorney
You will want to consult an attorney to make sure that you have the legal right to assume care of minor children. There may be other complications, such as a trust and additional financial instructions in a will that you need to follow.
If someone contests your guardianship, you will need an attorney in your corner if you decide to fight the petition.
2. Helping children deal with loss and trauma
You are now responsible for a child or children who have lost their parents. The psychological and emotional impact of this change can be devastating.
Seeking the help of a counselor or therapist for the children may be necessary to help them cope with their grief. It is better to put a plan in place for emotional support sooner rather than later.
3. Living arrangements
There is a strong possibility that the children you care for may have to move out of their neighborhood and school district. Such a transition can be very anxiety-provoking and upsetting. Plan for visits with the children’s friends to help ease the change to a new neighborhood. Reach out to other parents in the area and ask for introductions.
Enroll the children in the new school. You may have your own children at home and now they may also have a significant change in their lives. It can be a lot to manage, so you may want to reach out for support if you need it.
4. How to make decisions
You may live with a spouse, a partner, or alone. If you live with someone else, how will you make decisions about your children? Discuss the decision-making process and whether the two of you will make decisions individually or together.
5. Assess the financial situation
Raising children is expensive. Assess your financial situation and any funds that were allocated in the will to take care of the children. If there are inadequate funds for the care of the children, what adjustments do you need to make to your estate plan to ensure that the children receive proper care?
How to Arrange for Care if the Parent(s) Didn’t Make a Plan for Their Child(ren)
As a family member or a close friend, you may find yourself in the awkward and unenviable position of making some decisions if parents did not arrange for the care of their children.
The court may step in immediately to appoint either a temporary or permanent guardian. The person the court appoints may not be the person the parents would have selected, reinforcing the importance of making these decisions ahead of time.
If there are no surviving family members or no one wants custody, the child or children would enter the foster care system. In most states, if a minor child is 14 years of age or older, they may have a say in who they want as their guardian.
In any case, you want to make sure to check for a will. Even though the parents may not have planned for the care of their children, they may have an estate plan and designated funds for the children upon death.
1. If there is a surviving spouse
If there is a surviving spouse, then they will be granted custody. However, if their appointment would be detrimental to the child or children due to criminal behavior or drug or alcohol abuse, anyone can address this issue with the court and object to the appointment.
If the parents were not legally married, that could create complications depending on the state where they live.
2. Discuss as a family
As soon as possible, gather interested family members together to discuss who might want and be able to carry out the duties of a guardian. The person could be a grandparent, aunt, uncle, or friend. Use the same criteria listed above during these discussions.
There may be significant disagreement among family members as to who is the best person to assume the child or children’s care. If that is the case, consider hiring a mediator to sort out these issues and reach a consensus.
3. Consider an asset manager or set up a trust
Suppose there are assets to take care of minor children. In that case, the advantage of hiring an asset manager or setting up a trust with a professional trustee is to eliminate the appearance of impropriety. You don’t want someone later to accuse you of mishandling funds.
4. Hire an attorney
Whether the family reaches a decision or not, hiring an attorney can ensure that you take the proper and legal course of action.
For someone who wants guardianship and other family members object, it could mean a drawn-out court case which could be further damaging to the children.
Arranging for Care if the Parents Didn’t Make a Plan for Their Children
There is little doubt that planning for catastrophic events is something most people want to avoid. As parents, you don’t want to think about leaving your children without the love and care that you provided. Though it may be challenging, planning for the unexpected can give you peace of mind that your wishes will be honored.