It is every new parent’s nightmare to die and leave their children alone. Young parents think on their own death or disability and ask me, “What will happen to my children?”
No more orphanages
Even without planning, children go to the surviving parent, or else to someone (kin, friend, or stranger) willing to go to court and request a conservatorship, guardianship, or adoption. A declaration of guardian for children informs the court of each parent’s preferred guardian. It must be executed with the same formalities as a will.
A judge always decides who gets the kids
Most parents are uneasy if not distressed to learn that their declaration of guardian for children is not controlling. A surviving parent (divorced or not) is the natural guardian of the person of a minor child. A named guardian may or may not apply to be guardian, and the judge need not appoint them if they do. The standard of review is the best interests of the child. It is possible that your children go to someone you did not name.
Fights are about the money, not the kids
Too many guardianship fights are over the wards’ money, not their welfare. Love, rather than money, is more likely to determine your child’s caregiver if you settle the money management ahead of time.
Plan, or else the judge decides the kids’ money, too
There is no natural guardian of the estate of a minor child, not even a surviving parent. Property in the name of a child almost always compels a court-appointed guardianship or a court-created trust. It does not matter that a surviving parent or other responsible kin wants to help; without more, they cannot. Common interests compelling court intervention include an inheritance of probate assets, nonprobate beneficiary designations (e.g., wife primary and children contingent), and survivorship claims (think an accident that kills parents but not children).
Planning is easy
College is easy to fund without fear of a guardianship: use a 529 Plan, Texas Uniform Transfer to Minors Act account, or a lifetime gift trust that names a successor custodian or trustee. An inheritance is also easy to manage: simply write a will with at least a contingent trust for minors or disabled beneficiaries. At the same time, execute a declaration of guardian for children, which will give your preferred guardian priority over any interloper. Finally, never, ever designate minor children as beneficiaries of nonprobate assets. Better to designate the trustee under your will.
For terminally ill parents
A parent with a terminal illness may consider an agreed conservatorship, both for disability and beyond. The other parent must agree or at least get notice. A family court must bless the arrangement. A conservatorship is not necessarily permanent, and does not establish a parent child relationship.
For parents with a temporary disability
The form Authorization to Consent to Treatment of Minor delegates enough authority to let a friend or family take kids to the doctor for routine care (but not for immunizations). It works fine for a long weekend or maybe a planned vacation. For indefinite stays, e.g., until Mom gets better, the caregiver may need not just immunization authority, but also permission to manage school enrollment, driving, and health and auto insurance. The Authorization Agreement for Adult Caregiver can work well for these situations. The other parent must get notice. Court approval is required if one has continuing jurisdiction over the child. Caregivers who are uncertain can ask the parent to submit an Inquiry on Court of Continuing Jurisdiction to the Bureau of Vital Statistics, to resolve doubts whether the other parent or a court could set aside the agreement.
The takeaway
It’s bad planning to designate minor children the beneficiaries of your nonprobate assets. Instead, make a will with a contingent trust for minor beneficiaries, and sign a declaration of guardian for children at the same time. Follow your attorney’s advice about beneficiary designations. Thoughtful ones will instruct you how to designate the trustee under your will.
