Choosing a Guardian
Before I had children, I had a very spontaneous, adventurous, try-anything-once mentality. Having children put the brakes on that because now I have something, or someone, to live for. I gladly took myself out of the middle of my world and centered myself around my little bundle of joy. But what if I weren’t here? Who would love her and raise her?
Guardianship = Tutorship
When we think of a person who would take care of our children upon our death, we think of the word ‘guardian.’ However, in Louisiana, this person is called the ‘tutor.’ According to local attorney Sarah Thigpen, “Louisiana law provides that the last parent to die chooses a tutor (or guardian) for minor children. Typically, this selection is made by both parents in their Last Will and Testament. Parents should note that in divorce situations, the other living parent is going to automatically be the ‘natural tutor’ for the children, unless there are specific and extenuating circumstances, and should that parent die, then he or she would have the right to select a guardian.”
If you die without planning your estate and appointing a tutor, the court will choose who will take care of your children. This becomes an impersonal process as the judges do not personally know you or your children. They do not have an understanding of your expectations and dreams for your children. Furthermore, anyone with a familial tie to the children can step forward to request tutorship and the battle for the children can get unpleasant. If no family can be identified, appointing a tutor gets even more complicated and children can end up in the foster system. As a parent, you probably want to choose the person who may end up raising your child.
How to Choose?
First, acknowledge and accept that no one will ever take your place as your child’s mom or dad. Now, choose the next best person for the job. Keep in mind aspects of raising your children that are important to you as you choose a potential tutor, such as schooling preference, religious affiliation, how nurturing the person is, the potential tutor’s resources, parenting style, values, age of the tutor, the tutor’s own family, and the tutor’s goals and ideals. Does the potential tutor have medical issues that may prevent he or she from raising your children? Does this person love your children and do your children love this person? “A good guardian is going to be someone who you truly believe will have your child’s best interest at heart,” Thigpen continues.
Also, know that you can appoint more than one person. You may have the perfect person in mind to handle the financial aspects of your legacy, but that person may not be great with your kids. That’s okay! In many cases, there are two people named in the Last Will and Testament, a tutor for the care and wellbeing of the children, and a trustee to manage the financial aspects of child raising. Ideally, these two people have a good working relationship. The tutor will raise the children with the money that is held in the trust and managed by the trustee.
What is a Trust?
Trusts tell where, upon your death, the children’s property will lie: life insurance, property, cash, college funds, etc. These funds will be managed by the trustee and used to help the tutor raise the children to age of majority, and then parents select terms for when the children receive the rest of the inheritance funds.
It is often misunderstood that trusts are for the wealthy. This is not true! As attorney Namisha Patel put it, “Estate planning is not just for the rich and famous. Proper planning utilizes a variety of tools to protect your children and property. Hiring a lawyer to help with your estate planning is crucial to ensure the transition after your passing is smooth, especially for your children.”
Help the Guardian and Your Child
If your appointed tutor and trustee do have to step into the role of parent/financier, help make this transition as smooth as possible for them, given that everyone will be in a state of grief. Make sure that you have set up a trust with a trustee who will work with the tutor to the benefit of the children. Speak with the trustee about experiences that you value for your children, such as schooling, extracurriculars, travel, etc. Have open conversations with the tutor to share parenting beliefs, values, and styles. Also, parents may write letters to their children to open in the case of their untimely death.
While there is still a legal process involved even if a tutor and trustee have been identified in the Last Will and Testament, having your ducks in a row will prevent the court from appointing your child’s guardian(s) for you.
As a parent, this is one of the most difficult topics to think about and plan. But Patel offers this important advice, “This shouldn’t be a rushed decision and should be re-considered every couple of years.” ■