It’s a topic no parent wants to think about, but every parent must: if something happened to you and your children’s other parent, who would care for your children? The idea is so uncomfortable for many people, and their daily lives with work and children are so busy, that they put off making a plan—sometimes until it’s too late.
Michigan, like all states, has laws that will dictate who will care for minor children in the event their parents are no longer able to do so. These laws are intended to approximate what a parent would likely have chosen, had they had the chance. While the law is a helpful backstop, there are a couple of reasons it makes much more sense to do your own planning for your children’s future, and not to rely on Michigan law.
Two Reasons to Name a Guardian and Conservator
Let’s get some basic terminology out of the way. A guardian is the person who cares for your child on a day-to-day basis, like a parent would: packing lunches, making doctor appointments, tucking your child in at night. A conservator is the person who manages your child’s money and pays for things they need from the assets you’ve left them. A guardian and conservator are often the same person, but need not be.
The first reason to make your own choices for guardian and conservator is that if you don’t, the court will, and the court may choose very differently from you. Michigan probate courts are likely to appoint a close relative of the child as guardian and conservator. Perhaps you and your spouse have agreed between yourselves that your brother, who is responsible, caring, and has similar values to yours, would be the best guardian. The court may choose him—or might choose your spouse’s flighty sister, who has a very different parenting philosophy.
Another possible scenario is one in which you and your spouse are estranged from your families because of abuse or strong philosophical differences, but have dear friends that you’d want to parent your children if you couldn’t. The only way to guarantee your wishes will be honored is to name your choice for guardian and conservator in a valid Last Will and Testament.
Even if the court would choose the same guardian as you would, the matter is never settled instantaneously. At a time when your children’s lives have already been turned upside down by losing both parents, do you really want to subject them to the upheaval of waiting to find out who will take care of them—and a possible court battle over that issue? Naming a guardian in a will ensures a much smoother transition at an already traumatic time.
Should the Guardian and Conservator Be the Same?
As a practical matter, it is usually easier to appoint the same person to be both the guardian of your children and the conservator of their assets. That way, if the person caring for your children determines that they have a need, such as, private school, they have the discretion to use funds to pay for that need. However, there may be circumstances under which you want to choose a separate guardian and conservator.
Perhaps you have a sister who’s a stay-at-home mom and loves your kids, but is not savvy about finances. You also have a sister who’s a great money manager and a terrific aunt, but travels for work and couldn’t care for children. It might make sense to have them each take on the role for which they’re best suited.
If you choose to appoint the same person as your children’s guardian and conservator, you must be sure that it’s someone you trust implicitly, as they will have unfettered access to your children’s money. If you choose different people, you must be confident that they will be able to work together for the children’s benefit. In the above example, if the sisters are at constantly at odds with one another over other issues, they might not be a good team for your kids.
If you can’t bear the idea of the wrong people raising your children, talk to an experienced Oakland County estate planning attorney. Attorney James Hubbert can help you create or update your estate plan to ensure that your children are cared for as you wish, by the people you choose.