The importance of the Nomination of Guardian: Who cares for your children when you cannot

Say you’ve gone out to dinner with your friends or your spouse or your new beau. The kids are at home with the babysitter, someone you trust but who’s just a teenager. On your way home, the road is wet (as it has been for a while now all over California) and you get into a car accident. When you’re taken to the hospital, unconscious, the police are going to go to your house to check on your children. When there’s nothing in writing saying who should take your children in the event you are incapacitated (I recommend posting this on the refrigerator), then the police will take your children. The Nomination of Guardian can prevent this.

Your Nomination of Guardian states who you want to care for your children if you are not able to. It can be temporary, such as after an accident, or permanent, such as if you pass away. It is critical to have so that you do not have a gap of time in which your children are taken to the police station and sent out to foster homes until the situation resolves itself.

In the case of a divorce or other child custody case, it takes on a new significance because now there are two households involved. BOTH parents should have a custody and visitation agreement readily accessible to them and their child caregivers, and the agreement should be as specific as possible – even if the couple is agreeing and cooperating with each other – to break the “tie” in the event of a dispute. If the agreement/order says, “visitation as the parents agree,” then the police will not enforce that vague order. With a nomination of guardian, if the couple has already chosen one, both parties have to (1) understand that the other parent will be the guardian if something happens to them (unless there are issues of substance abuse, domestic violence, or some other issue that limits custody/parenting time for one parent), and (2) that the person the couple picked when they were a couple might not continue to be appropriate. Because the couple is now separated, there is a significantly lesser chance that they will die together, but that doesn’t mean a nomination of guardian is less important. Each parent needs to decide who THEY think will be the most appropriate person, and create a document memorializing that.

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Nominating a guardian: important estate planning for California parents

Say you’ve gone out to dinner with your friends or your spouse or your new beau. The kids are at home with the babysitter, someone you trust but who’s just a teenager. On your way home, you take your eyes off the road for a split second and you get into a car accident. When you’re taken to the hospital, unconscious, the police are going to go to your house to check on your children. When there’s nothing in writing saying who should take your children in the event you are incapacitated (I recommend posting this on the refrigerator), then the police can take your children – because you can be assured that they will not leave your children with a young babysitter. The Nomination of Guardian can prevent this.

Your Nomination of Guardian states who you want to care for your children if you are not able to. It can be temporary, such as after an accident, or permanent, such as if you pass away. It is critical to have so that you do not have a gap of time in which your children are taken to the police station and sent out to foster homes until the situation resolves itself.

In the case of a divorce or other child custody case, it takes on a new significance because now there are two households involved. BOTH parents should have a custody and visitation agreement readily accessible to them and their child caregivers, and the agreement should be as specific as possible – even if the couple is agreeing and cooperating with each other – to break the “tie” in the event of a dispute. If the agreement/order says, “visitation as the parents agree,” then the police will not enforce that vague order. With a nomination of guardian, if the couple has already chosen one, both parties have to (1) understand that the other parent will be the guardian if something happens to them (unless there are issues of substance abuse, domestic violence, or some other issue that limits custody/parenting time for one parent), and (2) that the person the couple picked when they were a couple might not continue to be appropriate. Because the couple is now separated, there is a significantly lesser chance that they will die together, but that doesn’t mean a nomination of guardian is less important. Each parent needs to decide who THEY think will be the most appropriate person, and create a document memorializing that.

So you have a living trust! Congratulations…now here’s some tips on what to do with it

Where to keep it, when to update it, and what to do with it:

o Keep your estate plan in your house, accessible to your family. If it’s in a safe deposit box when something happens to you, your family may not be able to get to it.
o Tell your family, and particularly your successor trustee, where your estate planning documents are located.
o Keep a copy (it does not have to be executed; I give my clients a blank copy) in a safe place, such as a safe deposit box in case your original is destroyed or lost.
o Review your estate plan each time there is a major life event in your family, such as a birth, death, marriage, or divorce. Also review it if you’ve bought or disposed of real property.
o Barring major life events, review your estate plan every two-to-three years to make sure it still reflects what you want. You can spend 15 minutes skimming through the summary sections to ensure you don’t want to change anything.
o Give your power of attorney for health care decisions and living will to your agent (the one who will be making decisions for you), and if it’s your spouse, also give one to the successor agent.
o Give your power of attorney for health care decisions and living will to your doctor(s) for your file, to the hospital if you have one you would go to in an emergency, and to your pharmacist.
o Give your power of attorney for your property to your agent or successor agent as well as to the institutions they will likely be dealing with, such as your bank, your financial advisor, or other account managers.
o Give your named guardian and conservator the nomination documents and make sure all caregivers know about them and how to find the documents in an emergency.
o TALK to your family about your wishes, your plans, and who you have designated as agent, conservator, and guardian.

The importance of the Nomination of Guardian: Who cares for your children when you cannot

Say you’ve gone out to dinner with your friends or your spouse or your new beau. The kids are at home with the babysitter, someone you trust but who’s just a teenager. On your way home, the road is wet (as it has been for a while now all over California) and you get into a car accident. When you’re taken to the hospital, unconscious, the police are going to go to your house to check on your children. When there’s nothing in writing saying who should take your children in the event you are incapacitated (I recommend posting this on the refrigerator), then the police will take your children. The Nomination of Guardian can prevent this.

Your Nomination of Guardian states who you want to care for your children if you are not able to. It can be temporary, such as after an accident, or permanent, such as if you pass away. It is critical to have so that you do not have a gap of time in which your children are taken to the police station and sent out to foster homes until the situation resolves itself.

In the case of a divorce or other child custody case, it takes on a new significance because now there are two households involved. BOTH parents should have a custody and visitation agreement readily accessible to them and their child caregivers, and the agreement should be as specific as possible – even if the couple is agreeing and cooperating with each other – to break the “tie” in the event of a dispute. If the agreement/order says, “visitation as the parents agree,” then the police will not enforce that vague order. With a nomination of guardian, if the couple has already chosen one, both parties have to (1) understand that the other parent will be the guardian if something happens to them (unless there are issues of substance abuse, domestic violence, or some other issue that limits custody/parenting time for one parent), and (2) that the person the couple picked when they were a couple might not continue to be appropriate. Because the couple is now separated, there is a significantly lesser chance that they will die together, but that doesn’t mean a nomination of guardian is less important. Each parent needs to decide who THEY think will be the most appropriate person, and create a document memorializing that.