If you’re a new parent, expectant parent, or experienced caregiver, you may be contemplating the critical decision of appointing a guardian for your children as part of your estate planning. In the realm of estate planning, the role of a ‘guardian’ is of utmost importance, as it significantly impacts your child’s future. In this exclusive discussion, we had the privilege of sitting down with renowned California estate planning attorney, Rebecca Matthias. She shares her expertise and insights on estate planning for new parents, shedding light on the significance of appointing a guardian and the peace of mind it can provide.
As an attorney, wife, and mother of three young children, Rebecca understands the profound importance of estate planning in securing your family’s well-being. In this interview on The Legal Odyssey Podcast, we delve into why appointing a guardian is an essential part of the process, how to go about it, and what factors to consider when selecting the right guardian. Whether you’re embarking on the journey of parenthood, expecting a child, or simply curious about the legal aspects of safeguarding your family’s future, this information will empower you to make informed decisions for your loved ones.
Explore this insightful podcast episode here or continue reading below to gain valuable insights into appointing a guardian for your children.
Why did you decide to become an attorney?
I started off wanting to help families. I wanted to help facilitate harmonious family relationships. I actually started off in the world of family law thinking that was the best place to invest in the family unit. I found pretty quickly though, that’s just not the case given the nature of divorce law and custody litigation and fighting over money. I was with a law firm that was practicing family law and estate planning. I just slowly transitioned over to the estate planning practice. And I found that I loved it because now I got to help prevent conflict, prevent unnecessary court appearances and unnecessary legal fees by just helping people create a really great plan.
As a wife and a mom myself with three children under the age of eight, I really feel that this is, estate planning, is our gift to them to make sure that they are well taken care of and that we’re not leaving a big mess in case something happens to us.
When you were a new parent what started going through your head in the realm of estate planning?
I think that there is a misnomer with estate planning, thinking I need an “estate” in order to create any sort of legal documents. The fact is that if something happened to me as a new parent, if I am on a date with my husband and I get into a car accident and first responders show up to the scene and I am rushed to the hospital, I’m incapacitated, and they realize that we have small children at home. What would happen to them? And that question really haunted me. Here in California and in many states, when there’s not a plan, the state has a plan for you. So if you don’t have some clear legal document where first responders can identify right away, that the social workers could figure out, that a court could look at to see what’s the plan? Who’s taking care of the child for the next 24 hours? Who’s going to make a medical decision? Then the state says, we’ll come up with a plan for you. We’ll appoint who we think is the best for your child.
Ultimately, you can start that crazy cycle of social workers and child protective services and foster care until somebody from your family can get into court and tell a judge, no, that’s not in the best interest of these children. I think that ultimately our job as new parents is to try to create a plan to keep our kids’ world safe, secure, and familiar, even if the worst happened to us.
Why is Appointing a Guardian Essential for New Parents in Estate Planning?
Appointing a guardian is crucial for new parents because it addresses the pressing concern of what would happen to your children in your absence. In California and many other states, the absence of a clear plan results in the state making decisions about your children’s future, which may not align with your wishes. Creating a guardian plan ensures that your children’s world remains safe, secure, and familiar even in unfortunate circumstances.
How Should Parents Go About Appointing a Guardian for Their Children?
When appointing a guardian, it’s important to consider a few key factors. One common thought about estate planning is parents think that nominating a guardian in a will is sufficient; however, a will only becomes effective upon death. In a scenario where you are temporarily incapacitated or you’re unresponsive, that will has no legal bearing on your children. To address scenarios where you are temporarily incapacitated, you really need a standalone guardianship document that would go into legal effect in the event of incapacity.
One other quick misnomer, is people think, I’m just going to name a guardian, they’re going to raise my child until they’re 18 and we’re good to go. If you have named a guardian that lives 20 minutes away from your house, an hour from your house, out of state, maybe even out of country, and they’re not able to get to your children in a timely manner, then there’s still a gap there. Who is taking care of your child for that first 24 hours?
My recommendation is to create a standalone legal guardian document with your estate planning attorney that goes into effect upon incapacity or death and nominates a temporary guardian, maybe a neighbor, maybe a babysitter, and then also nominates a permanent guardian. Who’s going to raise your child all the way through adulthood?
What Criteria Should Parents Use When Choosing the Right Guardian?
When selecting a guardian, I believe it’s essential to look beyond that potential guardian’s financial status. Instead, focus on envisioning your ideal scenario for your child’s care. Identify the characteristics, values, and the type of environment you’d want for your children. This exercise can provide clarity and help you identify your non-negotiables when choosing a guardian.
On top of that, it’s our responsibility to make sure there are enough resources for our children to be raised so that it’s not the guardian’s responsibility. One easy way to do that is often with term life insurance, for instance. That’s a very cheap, easy way to make sure there’s enough funds to raise your child.
What Are the Consequences of Not Naming a Legal Guardian for a Child in California?
In California, the absence of a legal guardian designation leads to a complex and time-consuming process known as probate court. Probate court can take one to two years, is expensive and makes crucial decisions about your assets and children’s future public and subject to a judge’s decisions, rather than your preferences.Now a judge is going to be deciding who’s caring for your child and how your assets are being distributed instead of you. With the probate court process in California, usually it begins with somebody filing a petition for probate and somebody else could be filing a petition for guardianship over your child. Those can be different people or it could be the same because ultimately you can actually have somebody raising a child and somebody else in charge of your money for that child. In California, when a judge ultimately decides who is the best person to be in charge of your estate and who’s the best person to be raising your child, they’re going to appoint a guardian of the person and a guardian of the estate. And this whole process is public. It becomes part of the public record. I always like to just point out that it does put creditors and predators on notice that there’s money getting distributed and that there are children involved and it can disclose a lot of personal information about you, your finances, your children. It can be quite a headache for friends and family.
What are some of the biggest challenges parents face when appointing a legal guardian for their children?
One of the common challenges parents face when appointing a legal guardian is the overwhelming nature of urgent daily tasks. In our fast-paced world, and especially for parents who are in the thick of it with raising their children, having their jobs, maintaining life, I do notice that the tyranny of the urgent can overwhelm them. Meaning that they end up doing whatever is most urgent in front of them and often, then one ends up neglecting what is most important, but maybe not as time sensitive.
I also think that people are occasionally intimidated by working with attorneys. In the legal profession, we can sometimes be guilty of speaking legalese and talking in such a way that people don’t even know what we’re talking about. I have had a lot of clients say to me, I could not understand the attorney. I could not understand what they were trying to explain. I did not understand what they were telling me to do and it seemed like they had an opinion and they were telling me to do this, but I never really fully grasped those legal concepts.
The first most important thing is to find an attorney that you just like and that you can understand. That can be a deal breaker because if you don’t understand what the documents even say, then it’s very likely that you’re not going to have a plan that is what you want at the end of the day.
The second thing is, I think that with the tyranny of the urgent, it is really important to try to find an attorney that can streamline the guardianship process for you and have a really clear timeline and deadline and reverse engineer those deadlines so that this is not a project that just continues on perpetuity for years and you never finish it. You really want to make sure that the attorney is super clear and tells you we’re finishing on this date and you’re going to be good to go on this date. That way, you know that appointing the guardian is going to be a short, seamless, efficient process to work through.
How common is it for an estate planning attorney in California to provide a free consultation?
I think that it is fairly common, most attorneys are pretty generous on the front end. I always do a meet and greet with my clients, for instance. I think that you can tell a lot with just even those initial interactions. How quickly do they get back to you? How responsive are they to your questions? How open are they? Are you just talking with their assistant the entire time? This initial consultation or meeting is a valuable opportunity to evaluate whether an attorney is the right fit for your needs.
Appointing a guardian for your children is a fundamental aspect of estate planning for parents. The decisions you make today can significantly impact your child’s future well-being and stability. Take the necessary steps to create a secure and comprehensive estate plan, and consult with a reputable attorney who can guide you through the process, ensuring your family’s peace of mind. Visit LawyerGuide.com to find an experienced lawyer in your area.