Episode 27 – Making Law Easy Show – Picking the Right Guardian
Posted on July 9, 2008
Filed Under Pittsburgh Legal Matters
Episode 27 – Making Law Easy Show – Picking the Right Guardian
Hello everyone, welcome to another edition of the Making Law Easy Show where we try to answer questions about legal topics to make life easier for everyone. And we’re going to talk about estate planning today from the contexts of picking a guardian. Picking guardians for your kids or for people who are disabled when you pass away. So why don’t we start right in. I’ve got an estate planning attorney who works with 1-2-3 Law Group. Cheryl glad to have you on the show again. You’ve done a couple of these shows with us and why don’t we start right in. What are the sort of things you should think about from an estate planning perspective when you are picking a guardian for your kids or disabled loved ones that you are taking care of?
Well the first thing you need to do is figure out, or of course you already know who you want to have a guardian for. And who you choose may be different according to what purpose that guardian needs to play. For example, if you’re going to be looking for a guardian for your children, it might be different than if you are looking for a guardian for an adult that you are taking care of. But I think that to make this easier, we’ll start with what we are going to be looking for in a guardian for a child. First of all there are two types of guardian. Now the first type of guardian is the type that’s going to take care of that person on a day to day basis. And you have another type of guardian who is the one who is going to be taking care of that person’s financial situation. Any kind of inheritance they might receive; any type of earnings they might have. If this person is a minor, or if this person is disabled, you know, severely mentally disabled that they can’t take care of that on their own, then you’re going to need to make sure someone is available to take care of their finances as well as their day to day needs as far as food and clothing and shelter. Now a lot of times people choose the same person, and sometimes they don’t. And there’s some thought processes that go into deciding whether or not you want the same person and deciding if you want separate people for these two positions, these two jobs.
Is this the sort of thing that’s usually a family member that you’d pick to be a guardian, or can it be a close friend.
It can be anyone you want. It doesn’t have to be a family member. It’s whoever you feel is best for the job. They don’t have to be related in any way. The things that you are looking for, you want to find someone that you trust. If we’re talking about minor children especially that you trust to raise your children with love, with respect, in the same way that they would raise children of their own. And someone who may know your desire for your children. We talk about religious issues or just certain moralistic ideas that you want to pass on to your children. These are people who maybe share the same ideas or who at least will respect your ideas, and try to raise your children in that way. Or to make sure they get the right kind of education. Or push them toward a certain profession. Something that you would do if you were not there.
Now obviously when you’re children are really young, as a parent you make those decisions for them. But what about for, you know, if you have teenagers. Is this something you want to talk to your teenagers about as you’re doing your estate planning, and get their input.
I think that would have to be an individual issue whether or not you talk to your teenagers. I think even teenagers, and I have a 14 year old. I would not talk to her about these sort of ideas, or these sort of things. You can talk t them about religious issues, moral issues, what you want them to do with their life, but you don’t want to talk to them so much about what’s going to happen once you pass away, because I think it freaks them out just a little bit. And, but that’s a personal decision. How well you know your child, whether or not they can handle it.
OK, and obviously when someone’s taking care of your children they’re taking over the financial responsibility. Is that something you can plan for in your will.
Well like I said, you can choose two separate guardians. One to take care of their day to day needs, and one to take care of their finances. Most people, and I think it’s a good thing to do, make this person the same person. There’s two types of guardian. The guardian of the person, and the guardian of the inheritance. The guardian of the person is the one who takes care of their day to day needs, you know, make sure they get to school, make sure they get dressed, make sure they are fed. And the guardian of the inheritances is the guardian of that child’s financial income. Any type of income they might receive from an inheritance or in any other respect until they are age, well of age, we’ll put it that way. I was going to say age 18. Age 18 is the legal fallback. But when you set up a guardianship in a will, you choose the age at which that trust or that guardianship ends. But the thing, when you choose separate people, the one reason to choose separate people is if say the guardian of the person is an elderly parent, and you’re concerned that maybe that elderly parent, although they may be the best person to take care of your children and to bring them into their home and give them the love that you want them to give, they may not be the best person to handle all of their finances. Maybe somebody, a brother or sister who lives further away may be a better person to know how to deal with those finances. And that might be some reason to consider doing it with separate people. On the other hand, another reason to keep that the same person is because if you have two separate people as the guardian of the person and one as the guardian of the inheritance, then the guardian of the person is always going to be petitioning the guardian of the inheritance for money to take care of these children. Because of course day to day needs take expenses. And any money that is taken from the children’s inheritance, which is allowable, to take money from their inheritance to take care of their day to day needs, their education, their food, their clothes. Children are expensive. And that money is there to take care of their needs. So the guardian of the person will have to petition the guardian of the inheritance to give them that money. And some people like that. Some people like to have that check and balance right there so that there isn’t one person who can abuse that power. At the same time it’s kind of a headache for the person who’s taking care of your children to have to do that all the time. So it’s a personal decision depending on who you are choosing for each position, whether or not you want to have that checks and balances, and whether or not you want to have the guardian of the person, the guardian of the children to have to do that or not. If you want them to have that headache. It’s just something that one way might be better for one person, and one way might be better for another person. But it’s very individualistic.
What I was getting at was maybe the answer was if you’re asking someone to undertake the responsibility. You know a lot of people do it for love, but you know sometimes you might want them to pay them a modest salary if you have the means to. And that’s not money going to the children’s care, that’s actually going to them, to the guardian.
I don’t think that that’s something that usually happens. I mean I think it’s possible to do that. You could set it up, cause you’re setting this up, when you set up a guardianship, you’re setting up a trust, a financial trust. And I’m sure that you could work into the trust a way to pay the trustee or the guardian. And in these terms is a guardian, but essentially it’s a trustee. I’m sure you could do that. Although usually, most people don’t. Usually it’s just done for love.
Someone that knows your kids, and they’re stepping in your shoes.
I mean if you are taking somebody’s children and raising somebody’s children, usually you’re not doing it for a salary.
Yes, how do you put a price on that.
Exactly.
OK, that’s useful information. I appreciate your advice on this Cheryl. If anyone has any more questions about any area or law or wants to listen to our dozens of podcasts on different areas of law, you can go to www.makinglaweasy.com where we have a whole list of shows. Or give us a call here in Western Pennsylvania at 1.877.7.123.LAW. Thanks a lot and we’ll forward to doing more shows with you Cheryl in the future.
Thank you.
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