Choosing a person to care for your children is difficult. In fact, for many families, it’s the hardest part of planning their estate.
It’s not easy to think of anyone else, no matter how loving, raising your child.
The problem only gets harder if your child has a disability.
Yet, you can make a tremendous difference in your child’s life by planning ahead.
You have nothing to lose except a few moments thinking about what you value most in life, and in childrearing.
You can ensure you have chosen the right guardian, by following three straightforward steps:
Step One: Make a List of People
Make the longest list you can of everyone you know who might possibly be a good guardian.
When considering whether someone should be on the list, ask yourself, “would they provide a better home for my children than the foster care system?” If the answer is yes, include them at first instance.
Step Two: Decide What Matters Most
Choose a few factors that are most important to you and rank their order of priority.
Here are some to consider:
- parenting style
- presence of children in the home already
- religion or spirituality
- current relationship with your children
- marital or family status
- willingness to serve
- physical and emotional capacity/well-being
- social and moral values
- habits, hobbies and friends
- availability of “free” time to raise children
Obviously, the perfect choice would score highly on every measure you deem relevant. But, because we are all imperfect, you will likely have more success in choosing the few characteristics that are most important to you.
As you make your choice, consider that some factors can be influenced by you and others cannot.
Integrity is something you cannot change. But if having an at-home parent is important to you, your prospective guardian might be willing to come home to raise your child if you make it possible through a well-structured and funded plan.
Do not focus very much on financial resources as a factor – it is your responsibility as the parent to provide enough financial resources, either through insurance or savings, to provide for your children financially if you are not available.
Step Three: Match People to Priorities
Use the factors you chose in step two to narrow your list of candidates to a handful. Listen to your body and feelings as you consider each person or couple as guardian.
You’ll need to rank in order this short-list into the people you would want first, second, and so on.
If you select an attorney experienced in helping parents of minor children, be prepared to answer the following question whenever you have named a couple: if the couple divorces or, because of death or incapacity, only one can serve, would you like either one to be guardian, or would you prefer to move to the next name on the list? Guardian nominations can be simple or as complex as you choose.
Regardless of which spouse’s family or friends appear more frequently on your final list, it’s important to keep both families involved.
One way to do that is to name members of one family as guardians to care for the children, and members of the other family as trustees, to manage the assets for the children.
If there is a likelihood of conflict between these family members, be sure to share this with your lawyer so that your guardianship can be customized to encourage them to keep the lines of communication open.
Other Important Issues
When selecting a guardian, it is best-practice not to appoint a couple. This is in case they separate.
It is better to nominate one member of the couple (often the female) as the primary guardian. The other member of the couple can be appointed as a substitute.
When planning for your child’s future without you, the financial side of things also needs care. Money doesn’t replace your love. But providing appropriate assets and income for them will improve their options.
Accordingly there is a difference between a guardian and a trustee. The trustee will handle the finances, whereas the guardian will live with and raise your child.
You can appoint the same person to be both trustee and guardian, or you can split the roles between different people.
If your child has a disability and qualifies for a Special Disability Trust, this can be an excellent vehicle to protect both your child and your assets.
A Special Disability Trust is for people whom the Australian Government recognises as suffering a major disability entitling them to receive a Disability Pension.
A Special Disability Trust has substantial tax and other benefits, and permits the beneficiary to retain their pension as well as receive income and assets through the trust.
Many parents lie awake at night, wondering what will happen to their children when they will no longer be around to take care of them.
Instead of worrying, parents can be proactive and establish a modern integrated estate plan – possibly including a Special Disability Trust.
Instruct a senior lawyer who specialises in estate planning. It is also a good idea to have the special-needs beneficiary assessed by Centrelink, to be sure it is within the boundaries of the law.
Laws can vary from time to time, so be sure to find a lawyer with experience in this area of law, and make it legal by putting it in writing – don’t just tell family members of your wishes, or the money won’t be protected and who is to say that your wishes will be carried out the way you expect?
With a little planning, you will soon be able to sleep nights again.
SPECIAL REPORT “Special Disability Trusts in South Australia”
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