Suppose you have been quite literally creative and now have 2 small children. No doubt they are the light of your life. You remember the first time your older child smiled, the times your second born giggled wildly at your silly antics. Fun. Look what you created! Good job.
I want to talk urgently and seriously to those of you who have children who are under 18 years old. If that does not include you, you might send this to a relative, friend or co-worker who does. Actually send it to everyone you know who does. This is very very VERY important.
And now the question arises, as it may at 3 AM the night before you and your spouse/partner are going to fly to Spain and leave your children with the grandparents for 2 weeks: What plans have you made for the children's care if "something happens" while you are in Spain?
Don't say, "nothing". Have you at least given one of the caretakers the right to sign permission slips for the children so they can go on school field trips while you are away? Yes, the trip to Slide Ranch which your son forgot to mention. Have you given one or both grandparents authority to authorize medical treatment so your daughter's leg can be sewn up after she jumps off the porch railing? Okay, okay, none of this is going to happen, but ...
Here is what I really want you to think about. Have you done your estate planning since the child or children were born or adopted? You need to do this.
You need to name a guardian to supervise the care of the child/children.
You have the right to say who will take care of your sons if you as the parent or parents cannot be there to do it yourself. As an estate planning lawyer I think it is best for you to have an experienced estate planning lawyer draft your Will and to include in your Will your nomination of guardians of your minor children.
You can name more than one person and my clients often name a husband and wife or husband and husband or life partners. You may like the values and personality of one person in a couple and not the other, then you can name just one of the pair as the guardian.
Be sure to name alternate guardian(s) in case the first one or couple are not in a place in life where they can care for your daughters.
Be sure, also, to say what happens if one of a couples dies or the couple divorces; who is the guardian then? You may or may not want the surviving partner to be the sole guardian. When making that decision do not automatically say, well, if the surviving spouse is my brother in law I wouldn't want him to continue as guardian. At that point he may be totally attached to your little ones (how could he not be?) AND your children could be damaged by another loss of parent figure, with the attendant uprooting, change of house, change of school, change of friends.
You should also include in your Will instructions about how you want your children to be raised, especially if you have some firm beliefs about experiences your children should have and values they should learn. Maybe, for instance you believe that it is very important to have your children participate in a certain sport or visit the country of their origin or eat certain foods that you find so yummy. Say it in the Will. Maybe being raised in a particular faith is important. Let the guardians know.
Think very concretely about what it will be like for your children to be raised with the guardians' children, if any, or at least in the guardians' house. Will the house be big enough or do you want to use some of the children's money to enlarge the guardians' house? Then will that improvement to the guardians' house belong to the people who own the house and are caring for your child or the child? Should both families come live in your house which is very spacious?? Will the guardians' children receive very elaborate gifts at holidays but your philosophy or finances dictate modest presents. (Or vice versa) Do you want to fix that so that there won't be jealousy among the children. Do you at least want to discuss it with the potential guardians so they will know what you think.
If you do not want to go to the estate planning lawyer, at least write down on a piece of paper who it is that you want to care for your children and put it where it can be easily found by someone looking for legal documents. Sign and date it. Give the names of the children. Have it notarized (unless it is a Will when having it notarized will invalidate it). Tell a neighbor and your sister where the paper is.
Here is what you definitely DO NOT want to have happen. You do not want to die leaving your children as orphans and have Child Protective Services place these precious babes in Foster Care.
Let me repeat, YOU DO NOT WANT THIS TO HAPPEN. So you must have someone named as the person who can take the children immediately, someone who can be appointed by the court to be the guardian.
YOU DO NOT WANT YOUR RELATIVES FIGHTING EACH OTHER OVER WHO WILL BE THE GUARDIAN. Do you? Everything will be handled well so that the stress on your little ones will be minimized provided you write down your choices.
AND WHEN YOU ARE WRITING THIS UP, BE VERY CREATIVE.