Who Will Take Care of Your Kids if You Can't?
(what it takes to legally make sure your family is covered)

The issue of who will be named caregiver of Anna Nicole Smith's daughter may seem way beyond what happens in everyday life, but the reality is many people have no idea how things would play out if they suddenly weren't around or able to care for their own children. No one wants to think about not being around to take care of their kids, but as a parent it's something that really needs to be considered. Although you may not want to "go there," not dealing with what could happen to your children if you suddenly became incapacitated or died is far worse. Imagine not having a say as to who would be stepping into your shoes and caring for your kids!

First and foremost, every parent should have a Will. Never mind if you think you don't have enough assets to worry about or what you do own is "in trust." A Will is where you designate who will be guardian of your child if you and the child's other parent aren't alive. To be safe, name a first choice and then a back-up. If you want, you can also name the guardian as trustee - that means he/she would not only take care of your child, they would also manage the assets and money you leave your child. You call the shots and name who you want to do whatever "job" you want them to do. But you need to do it now, while you can. Don't wait. If later on you change your mind about some aspect of the Will, you can modify it. Just remember, there are very specific rules regarding how a Will should be drafted, signed and changed, so don't take any chances, involve a lawyer so you know you have a valid document!

Maybe you are divorced or where never married to the other parent. What typically happens in such a case is unless the other parent is deemed unfit by the Court, he/she will be considered guardian even if you name someone else in your Will. But remember, something could happen to that other parent, so you need a back-up! With regards to handling the child's money and assets inherited from you, you can certainly name someone in lieu of the other parent. But again, you need to work with an attorney to make sure it's done the right way.

If you are married, you probably have oyur spouse named as the primary beneficiary of your life insurance policy, with your children listed as secondary. If oyu are not married, you probably wish your children to be the primary beneficiaries. Be aware that you have to be very careful that if you name a minor child as a beneficiary. You should be identify on the beneficiary schedule someone to act as the "custodian" of the money on their behalf or the insurance company may not release the funds until the child is 18! Again, make sure you talk to your attorney to make sure things are worded correctly.

A Will and a life insurance policy only apply if you pass away, so what happens if you are alive but are suddenly ill or in an accident, or even out of the country and someone else needs to make decisions for you r child? Can they? This is something people rarely think of and it can be a huge issue! Let's take the simplest scenario. Say you are heading off for vacation and have your mother or sister or even a babysitter staying with the kids. One of the kids gets a sore throat and has to go to the doctor. Or there is a fieldtrip with the school that needs a signed permission slip. The person caring for your children isn't the legal guardian, so they can't legally give authorization for medical care or sign off on that school trip.

Each state is different, but as of March 2007 Massachusetts parents/legal guardians can sign an Emergency Guardianship Proxy. The law allows a parent to appoint another person for a sixty-day period to have authority over the minor child (but not his/her assets). This is done without involving the Court so it's easy and doesn't cost anything. The law is specific though, so you have to make sure you follow all the requirements for this written Emergency Guardianship Proxy. For instance, the document has to specify the dates it is good for, list the Proxy (the person being named as caregiver), and list the children. The document also must be signed by the parents/legal guardians and the Proxy. All signatures must have two witnesses who are over 18 years of age or older.

The appointment of an Emergency Proxy does not take away any legal rights from the parent, and the parent can amend or revoke the Emergency Proxy at any time. An important thing to keep in mind though is that one parent can't appoint an Emergency Proxy if there is another parent who is willing and able to care for the child unless that parent also signs the document consenting to the appointment of a Proxy.

The Emergency Guardianship proxy is a good short-term solution, but what about if you anticipate needing someone to care for your child long term because, for instance, you are ill? Or you just want to have someone named in case you become unexpectedly ill or incapacitated. There are other legal options available such as the Standby Guardian, but this requires Court Approval. The Standby Guardian makes a lot of sense where there is only one living parent or one parent is ill and there is not other parent available. Some families with two healthy parents still want to know for sure they have designated who would care for their children if they were alive but couldn't. Really, it's all about planning. As parents we want to take the best care of our children we can. And that includes using all the legal tools available to us.

Copyright 2006 - Law Office of Gina M. Ghioldi, P.C.

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