If you’re 40, and have children, ask yourself who would care for them if something were to happen to you and your current or former spouse. Who would ensure they got to their dental appointments? School? Who would sit up all night after that first broken heart your teenage daughter experiences? How do you know they would attend college? For that matter, who else knows you’ve established a college fund for them already? If for no other reason, parents should make estate planning a priority for the sake of their children.
There are a myriad of quagmires that are waiting to serve as stumbling blocks when it comes to naming guardians for your children in North Andover, Massachusetts. In fact, in most states, the laws will unquestionably honor the ones they’ve chosen to serve as guardians for their children. In a handful of states, however, that’s not necessarily the case. In Massachusetts and a few other states, a probate judge can actually disregard your choices if it’s believed the one you’ve chosen is not suitable. A hearing is held and it’s then the courts that determine whether your chosen guardian is unfit or unsuitable.
There exists a probate protocol for background checks on prospective guardians, including criminal records and the abuse and neglect registry that’s maintained by the Division of Children, Youth and Families. The court is obligated to consider the minor child’s preferences when applicable and if the minor child is over the age of 14, the court provides “particularly careful consideration to their expressed desires.”
In fact, the law is clear: “As a practical matter, the court will give first consideration to the individual nominated by your will. But be aware, however, that there is no absolute guarantee that this choice will be carried out.”
If you’re divorced, there’s something to be said about setting aside differences and coming together to make this crucial decision so that others cannot make them for you. Many lawyers, including estate planning lawyers in Massachusetts, strongly encourage parents to make a list of what they feel is important in the event they both die. Consider faith and religion preferences, how many children already in the household is too many, relocation, schools, standards of livings, value systems, philosophies, social groups, sports participation, etc.
Many immediately think their parents are best and while that may be true, ask yourself if it’s really fair, especially if your parents or your in-laws are considerably older. Is it fair to a rambunctious ten year old? Is it fair to expect your 70 year old father to attend all of his grandson’s games in the bitter cold or brutal heat? Not to mention the living and financial arrangements that will have to be sorted out, which is especially important if your parents are on fixed incomes.
Because of the number of remarriages in this country, it’s no longer surprising to learn that a parent has an adult child but who also had a child in recent years with a new spouse. It’s actually common to learn that a husband or wife has a 20 year old and a 4 year old. This might serve as a viable option, but remember that there are often two sides of the family.
Finally, we encourage families to try to separate the finances and the emotions. It’s not unreasonable to name a guardian to oversee the financial aspects of caring for your children while naming another to provide the nurturing care you want for your child.
North Andover Guardianship Legal Advice and Guidance
While all of this is a bit overwhelming, it highlights how important it really is to not underestimate estate planning at any age. If you’re considering these life decisions, we invite you to contact our office to learn more about establishing guardianships for your children as part of your overall estate plan.
Daniel DeBruyckere
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