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Guardians

Young couples often think they do not have enough assets to consider estate planning. The most important assets they have are their children and most young parents have not taken the time to plan for their children’s care if something were to happen to them.

HOW DO YOU DECIDE WHO SHOULD TAKE CARE OF YOUR CHILDREN IF YOU WERE GONE?

Let’s face it; no one can take care of your children like you can. Exasperation sets in; communication stops and no decisions are made. You owe it to your children to make the mutual decision for today even if it will change in the future.

MY PARENTS ARE CLOSEST TO MY CHILDREN.

That probably is true, but they may have served their time. It is important to acknowledge the age factor. They will be there for the grandchildren but they may be the first to admit that the twenty-four hour commitment may not be realistic. We also have the problem with the decision of which side of the family. Each grandmother may think that she would be best suited for the job. Normally, grandparents should stay in the grandparent role and you should move to the next generation. 

WHO SHOULD BE THE GUARDIAN?

Getting past the family element, you should consider the couple who shares your beliefs, religion, lifestyle and morality. Where they live is also very important. Your brother may be best qualified, but to uproot your children and move them to another State may not be the best idea. 

This is one time you are allowed to be very opinionated and place yourself in the shoes of the guardian and also your children to see if it would all work out. The obvious choice is not always the best choice. The guardian is the PERSON. The guardian may also handle the funds but many times a trustee or third person will control and protect the funds for the benefit of the child. The guardian loses jurisdiction and authority over the child when he or she turns eighteen but a trustee can control the funds for an extended period of time. 

HOW DO YOU MAKE THIS SELECTION?

A WILL is the instrument where you list your choice for guardian. It is best that you name more than one in case your first named is unable to act. If your named guardian should decline, then the person next named will be appointed. If you were divorced, it would be all but automatic that the former spouse who is the natural guardian of the child would be named. Many people still name a guardian in case that former spouse would be determined to be unfit or predecease. You have at least made your thoughts known. This is an ongoing process and your choice may change through the years as your children change. Once the decision is on paper, it should be reviewed periodically to insure that the right decision is made. 

Jeff Roth is a partner with David Bacon and associate Jessica Moon of the firm ROTH and BACON with offices in Port Clinton, Upper Sandusky, Marion, Ohio and Fort Myers, Florida.  All members of the firm are licensed in Ohio and Florida.  Mr. Roth’s practice is limited to wealth strategy planning and elder law in both states.  Nothing in this article is intended for, nor should be relied upon as individual legal advice. The purpose of this article is to provide information to the public on concepts of law as they pertain to estate and business planning. Jeff Roth can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. (telephone: 419-732-9994) copyright Jeffrey P. Roth 2013.

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