Estate Planning

Choosing a Guardian for Minor Children in the Event of Your Death

It’s an awful question, but one you have probably pondered at least once.

What happens to my children if something happens to both parents? Who takes care of them?

Generally speaking, if the worst happens, there are two paths to guardianship that your children might go down here in the State of Maine. One path follows the plan you outlined in your Will. If you don’t have a Will, the other path is the one dictated by the State.

Electing Your Children’s Guardian in Your Will

When you create a Will, you have the ability to nominate adults who can serve as legal guardians for your minor children after your death.

You may name one or multiple adults to serve in this role (and some back-up choices in case these individuals can’t serve). Your chosen guardians will have the legal authority to make all of the decisions you currently do, including choosing where the kids will live and go to school, and the kind of medical care they receive. 

Upon your death, the nominated guardian can assume care and custody of your children right away, but must file an acceptance of appointment in the Probate Court and provide notice of the acceptance to certain individuals before being officially able to act as legal guardian. 

In most circumstances, this process should be relatively straightforward and the Probate Court will confirm the appointment.

Appointing Your Children’s Guardian When No Will Exists

Without a Will nominating a guardian for minor children, upon your death, Maine law provides a process for the appointment of a guardian.

Specifically, any person interested in the well-being of the child may petition to be a guardian for that child!

Before the Probate Court will act on the petition, it will hold a hearing to determine if the proposed appointment is in the best interest of the child and that the proposed guardian is “suitable.”

Notice of the petition and of the hearing date must be served upon several people, including the minor (if over age 14), any person who has been taking care of the child, and the closest adult relative.

How the process goes really depends upon individual circumstances. Are there several family members who may wish to serve as guardian, resulting in an ugly court battle over who is most suitable? Are there none who would step up, leaving your child with an uncertain arrangement? And who might emerge as a person who is interested in the well-being of your child? (For Lemony Snicket fans, think of Count Olaf!)

Even under the best of circumstances in this situation, the appointment process is a serious court process and takes money and time that would be better utilized during this difficult time in your child’s life. 

It is not my style to scare people into estate planning, but when it comes to nominating a guardian for your minor kids in particular, the consequences of inaction are too great for me to sound too forgiving about it. That said, I have a ton of empathy for how difficult it is to make the decision about who should be guardian! 

How Do You Choose a Guardian for Your Children?

So, who do you nominate to take on this incredibly important responsibility? No one is good enough, right?

Choosing a guardian for a minor child is the hardest decision parents make in their estate plan. And it is this decision that keeps many families from creating an estate plan in the first place because the parents can’t think of anyone who is the right fit or can’t agree upon the right guardians.

I get it! I felt the same way when making the decision for my own children. Let’s just agree that no guardian will be you, and that this decision involves making the most of less-than-optimal choices. 

This is a deeply personal decision and requires considering a few questions.

• Are there obvious, responsible adults whom your children love and trust?
• How do you want your children to be raised?
• Is it important to you that your children live in a certain place, go to a certain school, be active in a certain religion?
• Or, is it most important that your children be raised by family, wherever they live?
• Are there certain values that are essential to you that your guardian must embody? 

I encourage you to think along these lines and see which individuals in your life start to come into focus. 

This is hard work. But it is the most important work. 

Are you still struggling with this decision or have you made up your mind? Get in touch, and let’s work together to make sure that your family is properly protected.