Estates & Wills & Trusts

Don't put off naming a legal guardian: Allinotte

By Tony Poland, AdvocateDaily.com Associate Editor

In the first instalment of a two-part series, Cornwall wills and estates lawyer Michele Allinotte discusses issues that can arise when naming a legal guardian.

Choosing your children’s legal guardian can be one of the most important, and difficult, decisions when planning your estate says Cornwall wills and estates lawyer Michele Allinotte.

“People put off drawing up their wills because they don’t know who’s going take care of the kids,” says Allinotte, principal of Allinotte Law Office Professional Corporation. “You always have to have a discussion about it and try to figure out who is the best person. Sometimes couples can agree on that and sometimes they can’t.”

Failing to name a guardian can leave the decision up to a judge who doesn’t have a thorough knowledge of your children or your wishes for raising them, she says.

Allinotte tells AdvocateDaily.com that it is a good idea to “think about who would come forward if you don’t name anyone.”

“Chances are in most families there’s going to be the person who comes forward who is not who you would choose,” says Allinotte.

“Is the person who comes forward the one you would want to raise your children and, if not, who would be better?” she asks. “As well, if more than one person comes forward who is a judge likely to select as the legal guardian?”

Allinotte says, after considering those questions, parents should be in a better position to name a guardian.

If the person most likely to step forward is the one you would trust to raise your children, then “that is obviously the natural person to name.”

“If not then you would want to look inside your family or your circle of friends and think about who you know who are raising their children in a similar fashion to you, those with similar values and narrow it down from there,” says Allinotte.

“There is the practical matter of whether or not they will do it. What are their religious values, how do they manage money, what are their views on education? You want to consider their health and age. Sometimes the relative who lives far away is the most appropriate person, so you need to consider how it’s all going to work out.”

Simply adding a name to your will is not enough, she says.

“That’s a terrible idea because, if you’re naming someone, they should know that you want them, and they should be prepared to do it,” says Allinotte.

Parents need to think of “the pros and cons of everything” when naming the person who will be entrusted with the care of their children, she says. The most obvious choice could experience a change in health or lifestyle, such as the breakup of a marriage.

“You could appoint someone who has a great relationship with you, but by the time you die, they could have moved out of the country, they could be in an abusive relationship, they may not want to take the children. There’s a variety of factors,” says Allinotte, adding it’s important to periodically review your choice.

It is not uncommon for a couple to disagree on a guardian and will put forth their own choice. However, should both parents die together it would go to the court to decide, she says.

Allinotte says it’s also possible that a friend or family member may contest a guardianship.

A solution to avoid such a situation might be to “have a discussion with them about why you’re choosing that person,” she says.

“You can also leave a letter with your will explaining your decision,” says Allinotte. “It’s not going to have formal evidentiary weight, but it certainly will be persuasive if the court is trying to decide between competing interests.”

Along with naming a guardian, parents should also have “an emergency plan” with instructions for the children’s care in the event of a death.

For example, if the legal guardian does not live in town, a temporary guardian should be named. She says it is possible for the children to be placed in the care of child protection authorities if no plan is in place.

“Obviously that would be terrible for a child. Their parents didn’t come home, and they have to go to a stranger’s house. They don’t know what’s going on or why are their parents are not with them,” says Allinotte.

Because naming a guardian can be difficult, she says it’s essential to get good advice.

“You need to go to a lawyer who can talk about what you want and what your concerns are and can help you make the decision,” says Allinotte.

Stay tuned for part two of this miniseries, where Allinotte will discuss guardianship obstacles and options for divorced couples.

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