Wills, Trusts & Estates
Law Office of Steven M Berger, LLC


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Naming a Guardian for Your Children

The birth of a child is often the impetus for a young couple to schedule an appointment to discuss estate planning.  The process hits a roadblock when the new parents try to decide who should be named as Guardian of their children.  It is my job to help them make the decision.  Brothers and Sisters are usually thought of as the first choice with parents as a close second choice.  Are they able to provide a stable environment for your child?  Do they have the resources to provide for your children?  What age will they be when your child is eighteen?  Do they live close to you or will the child have to move across the country to live with your Guardian?  All these factors and many others need to be considered, but effective planning involves looking at the situation and resources available. One of the ways to plan for your child is to separate the financial responsibility for your child from the parental responsibility.  Our office recommends a trustee to handle the money you leave to provide for your child.  The trustee may or may not be the same person who is the Guardian of your child.  The prevailing wisdom is that the Guardian can handle the child's money as the person responsible of the upbringing of the child.  The other story I like to tell is that your sister may be a wonderful parent.  However, she has always had problems managing her money and her time will be even more limited with another child to raise along with her three children.  So why not name your uncle who has no children, but runs a successful accounting firm as your trustee.

Our office recommends that a trust is created for the child's benefit with specific instructions to address many of the issues that may arise.  Will your Guardian need money for the increased household expenses for a larger family?  Perhaps, you would be willing to allow use of some life insurance money so your child can grow up in better economic circumstances than what your Guardian is able to provide.  You may want to provide instructions on making travel funds to visit Grandparents, cousins, etc.  Most parents do not want to see their children receive a large amount of money at age 18 or even at 21.  Rather instructions are left allowing payment for college, marriages, first homes, and to start a business.  The trust can continue to run for years depending on the amount of money you have left for your child.

How do name the future Guardian of your children?  Your Guardian should be named in your will.  The priority for naming the child's guardian is detailed in Md. ESTATES AND TRUSTS Code Ann. § 13-207Should you be separated or divorced, the child's living parent has priority over your designation in the will.  However, a single parent should consider who can be the child's Guardian in the event of parent's disability.  Maryland allows for the designation of a Standby Guardian who can step into your shoes and become the legal Guardian of your child.

Finally, the illustration I like to use is what kind of "Babysitter Instructions" do you leave when you leave your child for a few hours or overnight.  My recommendation is that you prepare the same type of instructions in a sealed letter for your Guardian.  This letter should contain your wishes on how the child should be raised, information about his or her habits, strengths, and weaknesses.  In addition, a sealed letter written to your child conveying your love, dreams, and hopes will be a treasure that will help them continue without you.  None of these plans will be perfect or replace two loving parents raising a child, but minimizes many of the obstacles the child will face.