Episode 7: What Happens to My Kids If I Drop Dead Tomorrow?

From Our “Ask a Question” Mailbag: “I have two minor children.  It is strange to think about, but if my wife and I die, they will be orphans.  What Happens to My Kids If I Drop Dead Tomorrow?”

Guardianship Lawyer, Peter Klenk

Guardianship.

A Guardian is a person with the legal authority and responsibility to look after someone unable to manage their affairs.  An adult who is unable to care for themselves may need a Guardian.  Guardians are also appointed for minor children who are legally unable to make these decisions. 

Minor children cannot complete government paperwork, enroll in school, or make most financial decisions.  Typically, the child’s parents make these decisions.  But what happens when the parent has died or is otherwise unable to fulfill those parental responsibilities?  Guardianship is often the answer.

Today we are focused on minor children.  When you ask, “What Happens to My Kids if I Drop Dead Tomorrow,” you are principally asking about Guardianship. 

Is There Temporary Guardianship?

A minor child needs a Guardian whenever there is no parent able to serve.  This can be if both parents have died, but it can also be if neither parent is competent to serve but are still alive.

For example, what if the parents and child are in a car accident, leaving both parents unconscious but alive?  The child might be sitting with a nurse or a police officer, and decisions about medical care are needed.  The child might need some tests or just stitches.  Who authorizes this care?  Further, if the child is healthy, who takes the child home?  To whom do the police turn over the child?

Many estate plans do not consider this.  But, most states have a law that allows a parent to appoint a Temporary Guardian.  This document, separate from the Will, which only takes effect if the parent is dead, names this Temporary Guardian, authorized to step in when neither parent is competent but at least one is alive.  The person appointed as the Temporary Guardian can allow medical care and take the child home.  If you have a minor child, this is an essential document, providing a clear path of authority in what is likely a chaotic and stressful situation.  Further, it allows the police and medical professionals to identify the person with legal authority, so they are not forced to sort out the correct person from a roomful of relatives.

Once a child is older, this document can be scanned in and kept on the child’s phone.  The child can know that, in an emergency, this document can be shared with the police or doctor.

What is Permanent Guardianship?

If both parents die, then the courts oversee the process of naming the minor child a Guardian. 

In your Will, you can name the person you wish to serve as the Guardian.  It is beneficial if both parents agree on this person.  Otherwise, you could have people competing for the job having an equal claim.  In the end, the judge picks the Guardian.  Try to avoid creating conflict between family members.  Your child will be facing a traumatic, life-changing event, so try to make this process as easy as possible.

Who Should Serve as Guardianship?

Sometimes parents find it easy to select the person they want as their child’s Guardian.  Often, it is a short list.  But, for others, trying to agree on the right person is a problem.  Families sometimes don’t get along or live far apart.  Will the Guardian make sure the child gets to visit all family members?  Will your child be educated the way you would wish?  Is the ideal Guardian older, and even with the best intentions, perhaps no longer up to raising a teenager or a toddler? 

These questions are all sound and should be thoroughly examined.  You don’t have a crystal ball and can’t tell the future.  But, having a frank and honest discussion with parents and the potential Guardian will help ensure you make the right choice. 

Remember, you can constantly update your decision.  We encourage our clients to review their choices at least once a year.  Things change.  Perhaps your mother was the best choice a few years ago, but now she moved into an over-55 community and can’t house the children.  Maybe your sister had another child and no longer has the energy to care for your children should you die. 

Make the best choice for now, but review this decision over time.

What Else to Prepare?

Should you become incapacitated, the Temporary Guardianship mentioned earlier allows your chosen person to take custody of your children.  But kids cost money.  Your Guardian will suddenly be taking on a substantial financial burden.  If you are incapacitated, you can’t write a check.  How are these bills paid?

Make sure you have named an Agent through a Durable General Power of Attorney.  This document gives your Agent the right to access your bank accounts.  Furthermore, make sure the document gives the Agent the right to pay for the costs of your children.  This way, the Agent and Temporary Guardian can work together.  The Guardian provides care, and the Agent pays the costs.

Follow this link for more information about Durable Powers of Attorney.

If you have died, then your Power of Attorney is void.  Instead, your Executor files your Will and takes control.  If you have a minor child, you should have set up Dynasty Trusts in your Will.  These trusts provide a way for your Trustee to hold money for your children and pay their expenses.  The Trustee and the child’s Guardian work together.  The Guadian acts as the parent, while the Trustee manages your child’s inheritance.

Follow this link for more information about Dynasty Trusts.

More Information.

This blog is a short answer to the question, What Happens to My Kids if I Drop Dead Tomorrow?  For more information about Estate Planning, follow this link to my webpage; Guardianship, Everything You Need to Know.

In Conclusion: What Happens to My Kids if I Drop Dead Tomorrow?

I hope you found helpful this short article responding to the question What Happens to My Kids if I Drop Dead Tomorrow.  I have also included some links for more detailed information.  Contact us if you want to know more or have an estate that needs our help.  Let our Probate and Estate Planning lawyers help walk you through what can be a confusing process.  Feel free to contact our office for a free consultation. 

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