Here are three tips for tackling this process:
- Understand the law.
The key Washington statute involved in nominating a guardian is RCW 11.88.080. It states:
When either parent is deceased, the surviving parent of any minor child or a sole parent of a minor child, may by last will or durable power of attorney nominate a guardian or guardians of the person, or of the estate or both, of a minor child, whether born at the time of executing the instrument or afterwards, to continue during the minority of such child or for any less time. This nomination shall be effective in the event of the death or incapacity of such parent. Every guardian of the estate of a child shall give bond in like manner and with like conditions as required by RCW 11.88.100 and 11.88.110, and he or she shall have the same powers and perform the same duties with regard to the person and estate of the minor as a guardian appointed under this chapter. The court shall confirm the parent’s nomination unless the court finds, based upon evidence presented at a hearing on the matter, that the individual nominated in the surviving parent’s will or durable power of attorney is not qualified to serve.
Note that the parents nominate the guardian, but do not appoint the guardian. That’s up to the court. Most of my clients believe that if they decide who should serve as guardian, that’s all that needs to happen. That’s not true. Guardianship is a legal process involving courts, attorneys, and signed orders.
- Consider the contingencies.
Remember, your job here as a parent is to look ahead. Five years from now, the couple you nominate to serve as guardians today may have: (1) gotten divorced; (2) moved across the country, or even outside of the United States; (3) suffered a debilitating financial hardship; or even (4) died. It’s important to review the guardianship provision of your will on an on-going basis, to make sure that your choices fit well with current reality. It’s also important to nominate alternate guardians in your will, in case your first choice is unwilling or unable to do the job. Backups are crucial.
- Tackle the conversations.
Choosing a guardian involves lots of conversations. Parents need to discuss this issue, even if they are no longer together as a couple. Ideally, in those situations, each parent will have identical guardianship provisions in his or her wills so a judge will not have to pick between competing nominations. And, parents need to have in-depth discussions with the proposed guardians about their willingness to serve, ideas about how their children should be raised, financial issues, etc.
Remember, the alternative to not selecting a guardian is to have a judge decide who should serve, without input from you. That’s not a good option. I encourage you to embrace this responsibility rather than pass it off to the courts.
Need help? Have questions? Please contact us. We’re happy to help you work through these guardianship concerns as part of the overall estate planning process, so that your selection is both wise and properly documented.
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