Lead estate planning attorney at the Law Office of Bryan Fagan, Megone Trewick, has been featured in a video on YouTube in which she discusses what it means to be the guardian of a child or an adult with special needs. We think that this video is so important that we have written out a blog that expands upon the points she makes so well in that video. If you have not seen it, we highly suggest that you take the five minutes (yes, only five minutes) to watch that video so that you can get a feel for what it means to be a guardian and what sort of responsibility it is to take on the mantle of a guardian for someone else.
As Attorney Trewick points out at the outset of the video, the job of a guardian is not easy. No matter who you are taking on as a ward (the legal term for the person who will be under your care and supervision) there are challenges associated with doing so. In some ways, it can be even more difficult than parenting your children. Stay with me on this a moment. With your children, you have a natural, biological relationship with the child. He or she is your flesh and blood. You created him or her. Therefore, there is something innate that tells us to care for our children no matter how difficult they may it on some occasions.
When you look at being a guardian it is not something that the law forces you to do by any means. You are voluntarily entering into a situation where you are going to be responsible for the well-being of another person to whom you owe nothing in a legal sense. Rather, this is a person that you have identified as needing a leg-up in this world. Even though you are reacting to a need in the community for you to fulfill this role, there will be no reduced level of care that you can provide. Either you are going to be all in, or you may as well look for another way to help this person.
Here is where you will be assessed as far as your ability to act as a guardian towards another person. You need to be able to look inside yourself and determine what sort of responsibilities you are willing to take on for another person. You will need to assess honestly whether you can live up to the responsibilities associated with acting as a guardian to an individual. There is nothing wrong with determining that this may not be for you or at least may not be for you at this very moment. Before committing to someone consider what characteristics are critical for a potential guardian to possess.
Are you well-suited to act as guardian of a child?
Whether you are a parent who is interested in naming a person to be the guardian of your child in a will or is an individual who knows of a person who could benefit from you becoming their guardian, it goes without saying that you need to be intentional about how you approach the subject of guardianship towards a minor child. Children require constant supervision at a young age. Potty training, disciplining, and teaching the child to read. These are just a handful of the responsibilities you would have on your plate as the guardian of a young child. Whether you know it or not, your potential ward and your relationship will change once you become a guardian rather than a caring uncle, aunt, or friend.
As a parent, it can be terrifying to force yourself to consider what could happen if you and your spouse passed away suddenly. With no time to prepare, the lives of your children will be impacted in ways that you and I probably don’t even realize at this moment. While we hope that something will never happen to us that would cause us to lose our lives, the reality of the situation is that we have no control over these types of random occurrences. Rather, we need to consider first what it means to prepare your estate and then what it means to take that intentionality to the next level as far as determining who is best suited to act as the guardian of your children.
There are so many characteristics that we could choose from as far as picking the best guardian possible for your children. However, I think for simplicity’s sake we can just leave it at one word: trust. Do you have a supreme amount of trust that the person who is named as guardian of your children will be able to fulfill their responsibilities and care for your children the same way that he or she would care for their children or grandchildren? This is a lot to ask but don’t your children deserve the type of tender love and affection? The bar needs to be high for a guardian of your children to say the least. You need to be incredibly intentional about who you name to this role.
One of the criteria you may wish to utilize in this role is to determine who out there is willing to act as guardian to your children if called upon to do so. In all honesty, this may be the one criterion that chops the list down to just a few people. There may be a lot of trustworthy people in your life. However, to go the extra mile and be trustworthy, willing to love your children as their own, and to make the tough decisions for them is quite the list of boxes to check off. It can be just as challenging as finding a person to enter a committed relationship with. The more discerning you are, however, the better off your children will be in the future.
First- what sort of values do you and your spouse have? Are you religious? An advocate for a certain cause? Have a soft spot in your heart for a particular group of people? Think about your moral compass and the values that arise because of that compass. Then, use that moral compass to direct you towards the person or persons whom you believe can help your children develop qualities or values of their own which will be just as beneficial as the qualities which are most impactful and important to you.
Go through the people in your life and start to consider who could fulfill the responsibilities of acting as guardian to your children. This does not have to be (and probably will not be) a very long list. If you are being discerning, then there are probably a short list of people that you would consider putting in a position where they would care for your children as guardian in the event something happened to you and your spouse. Again, there are financial, time, relational, and emotional components to this question. The person you consider naming as a guardian needs to be on board with your values and be willing to work towards building a strong level of trust with you and your children if you are to name him or her as a guardian.
If you are thinking of naming a couple as guardians to your children, then you have encountered an interesting situation. You not only need to think about one person, their values, and what they can offer to your children as far as love and care, but you need to think about two people. No matter what their values are as individuals, your potential guardians need to be on the same page as one another as far as school is concerned along with medical care, athletics, dating, and the like. Even if the guardians do not see eye to eye with you on every subject under the sun, if they can be on the same page as one another then that can go a long way towards giving your child an opportunity to have a stable and cohesive life.
Here is where the situation can also reveal something about the potential guardian’s spouse. Determining if all parties are on board when thinking about any number of issues can be a lot to handle. If the guardian cannot envision themselves going into the camp as far as time away from work and other activities then that is a good sign that this person is not yet prepared to act as a guardian. This does not mean that the person is greedy or selfish. However, it does mean that he or she has other priorities going on in their life now. As difficult as it sounds a person may be wonderful but if he or she cannot commit themselves to your child just as a biological parent commits to their kiddo, then you need to look in another direction as far as a guardian for your children is concerned.
What does a guardian do, anyway?
A guardian, whether caring for a child or an adult, takes on responsibilities in the following areas of a ward’s life. Remember that if your child or loved one has a special need in a particular area then that is something that may need to be focused on even more as far as choosing a guardian is concerned. For example, if your child has major medical issues then the fact that one of your options for a guardian is a nurse would seemingly be a factor in their favor as far as becoming the listed guardian of your child in a will or similar document.
Educational and medical decisions are crucial responsibilities that a guardian takes on whether it be concerning a child or an adult. To make decisions for a person regarding their health care or their education the person you name as a guardian must understand the ins and outs of your child or family member’s daily life. You should consider a person who has familiarity with the proposed ward.
Another consideration is how well can a person follow instructions when it comes to distributing property in a trust or performing any other type of role on behalf of your children. While it is not essential that the person named as a guardian to your children also act as executor of your will or trustee of a trust it can help to have one person fulfill all those responsibilities. This is another important matter and how you plan your estate, and you can benefit greatly by speaking to an experienced attorney about these matters so that you can be guided as well as possible.
Before today’s blog post is over, we should point out the importance of speaking to your proposed guardian before naming him or her as a guardian in your will. The last thing you will want to do is name a person as guardian of your children in a will only to find that that person is completely unwilling to fulfill the obligation. If you found this out while you are alive then you can at least change the person in the important documents. However, if you pass away before finding this out then your children will be left in a position where the individual named as their guardian in your will chooses not to step forward and care for them. Your children would then be in a position where they could potentially have a court choose a guardian for them. This would defeat the purpose of estate planning altogether.
Use this acronym to determine if you could stand as guardian for another person
Attorney Megone Trewick of the Law Office of Bryan Fagan uses the word “praise” to recall the characteristics that can make a person a great candidate to act as a guardian. You can certainly have your list of important characteristics, but we think that Attorney Trewick’s characteristics are a great starting point for anyone to consider.
You should be a patient person if you are considering an invitation to become the guardian of another person. If you are someone who jumps to conclusions, cannot tolerate someone who cannot move as fast as you can, or has little experience in caring for the needs of others who cannot help themselves then you may not be a great candidate to become a guardian. Guardians care for children, special needs adults, incapacitated people, and the elderly. These are not exactly groups who move at the speed of light and who can care for themselves much at all.
Next, you should be resilient. This means that if you shy away from learning from your mistakes or have trouble bouncing back after a bad day then perhaps being a guardian is not the right rule for you. The same token, if a person that you are considering as guardian of your children cannot handle a rough day with a child then that may be your sign to pick someone else to serve as guardian to your children in a will.
A guardian is an advocate for a vulnerable person like a child or special needs adult. You should be comfortable with fighting for your ward and doing what is best for him or her even if other people are pushing for a different type of outcome. It takes an intuitive person to be able to understand what needs to be fought for as well as the best interests of the ward. If you are the type of person who needs to be told directly what a person needs, then being a guardian may be a struggle for you.
Next, if you are someone who has a default position to care about themselves first before anyone else then being a guardian almost certainly is not for you. On the other hand, if you are the type of person who can devote themselves to someone else and who does not need a lot of attention or time spent on your own needs then being a guardian may be something right up your alley. A guardianship is such a thankless position much of the time that being selfless is an incredibly important characteristic to embody.
Finally, you as a guardian must have the energy to fulfill the responsibilities on a day-in and day-out basis. A guardianship is not a day job. You cannot simply act as a guardian during business hours and then leave your ward and go and do your own thing in the evenings. This is a full-time responsibility and one that you need to consider what sort of limitations it will put on the rest of your life. However, if you have a servant’s heart and a willingness to put the interests of others before you then being a guardian may be the opportunity of a lifetime.
Questions about the material contained in today’s bottom post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas estate planning as well as about how your family’s circumstances may be impacted by the filing of a probate case.