E. Guardianship and Care of Your Minor Children
Another benefit of estate planning is the ability to choose WHO will care for your minor children, should you pass away before they become adults. In California, the name for a person or people designated to care for your children is “guardian” (which is sometimes confused with “conservator,” which deals with the care of adults).
A guardian’s duties are expansive. The guardian effectively steps in as the child(ren)’s parents, and are therefore responsible for day-to-day care, ranging from potty training, to medical care and education. The only effective difference between a guardian and an adoptive parent is that the child is not considered an heir at law to the guardian. Choice of a guardian is particularly important for same sex couples residing in states that don’t recognize gay marriage; if one of the spouses is not legally considered the parent to the child or children, they will have little or no rights to custody if the parent-spouse passes away.
Choice of a guardian requires careful consideration of factors such as the current age of the children, the desire to keep them in the same schools, the religion you would like them to be raised in, the age of the proposed guardian(s), the guardian(s) ability and desire to care for young children, and the mutual or conflicting wants of the parents. And a backup guardian should be selected, in case your first choice is not available.
Rapper Adam Yauch, of the Beastie Boys and his wife Dechen had trouble deciding who to name as guardian, and came up with a unique method. According to testamentary documents filed after Mr. Yauch’s death, if his wife had pre-deceased him, and he died in a year with an even number, his parents would have become their children’s guardians. If, however, he’d died in an odd-numbered year, the arrangement would be reversed, and his wife’s parents would have been the named conservators.
A guardian selected by you is not automatically granted custody. The guardian must be still be confirmed by the relevant probate court. Absent any objections or overt evidence of someone’s capability to care for a child, however, your choice is likely to be respected. In the event you do not name a guardian, the court will select one for you – someone you may not want raising your children. Accordingly, choosing a guardian is a simple, but important, step in estate planning.