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Who Will Care for Your Child When You Cannot?

As a parent, you are responsible for the care of your minor child. In most circumstances, this

means getting them up for school, making sure they are fed, and providing for other basic

needs. However, what would happen if you and your child’s other parent were unable to care for


It is important to note that if something were to happen to you, your child’s other parent is most

likely going to have full authority and custody of your child, unless there is some other reason

why they would not have this authority. So, in most cases, estate planning is going to help

develop a plan for protecting your child in the event that neither parent is able to care for them.

What If You Die?

When it comes to planning for the unexpected, many parents are familiar with the concept of

naming a guardian to take care of their minor children in the event both parents die. This is an

important step toward ensuring that your child’s future is secure.

Without an Estate Plan:

If you and your child’s other parent die without officially nominating a guardian to care for your

child, a judge will have to make a guardianship decision. The judge will refer to state law, which

will provide a list of people in order of priority who can be named as the child’s guardian—

usually family members. The judge will then have a short period of time to gather information

and determine who will be entrusted to raise your child. Due to the time constraints and limited

information, it is impossible for the judge to understand all of the nuances of your family

circumstances. However, the judge will have to choose someone based on their best judgment.

In the end, the judge may end up choosing someone you would never have wanted to raise

your child to act as your child’s guardian until they are 18 years old.

With an Estate Plan:

By proactively planning, you can take back control and nominate the person you want to raise

your child in the event you and the child’s other parent are unable to care for them. Although

you are only able to make a nomination, your choice can hold a great deal of weight when the

judge has to decide on an appropriate guardian. The most common place for parents to make

this nomination is in their last will and testament. This document becomes effective at your

death and also explains your wishes about what will happen to your accounts and property.

What If You Are Alive but Cannot Manage Your Own Affairs?

Although most of the emphasis is on naming a guardian for when both parents are dead, there

may be instances in which you need someone to have the authority to make decisions for your

child while you are alive but unable to make them yourself.

Without an Estate Plan:

Not having an incapacity plan in place that includes guardianship nominations means that a

judge will have to make this judgment call on their own with no input from you (similar to the

determination of a guardian if you die without a plan in place).

With an Estate Plan:

A comprehensive estate plan can also include a nomination of a guardian in the event you and

the child’s other parent are incapacitated (unable to manage your own affairs). Although you are

technically alive, if you cannot manage your own affairs, there is no way that you will be able to

care for your minor child. This is another reason why having a separate document for

nominating a guardian may be preferable to nominating guardians directly

in a last will and testament. Because a last will and testament is only effective at your death, a

nomination for a guardian in your will may not be effective when you are still living. However, a

nomination in a separate document (most commonly in a Revocable Living Trust) that anticipates the

possibility that you may be alive and unable to care for your child can provide great assistance to the

judge when evaluating a guardian. Depending on the nature of your incapacity, this guardian may only

be needed temporarily, with you assuming full responsibility for your child upon regaining the ability to

make decisions for yourself.

What If You Are Just Out of Town?

Sometimes, you travel without your child and will have to leave them in the care of someone

temporarily. While you of course hope that nothing will go wrong while you are away, it is better

to be safe than sorry.

Without an Estate Plan:

Without the proper documentation, there may be delays in caring for your child if your child were

to get hurt or need permission for a school event while you are out of town. The hospital or

school may try to reach you by phone in order to get your permission to treat them or allow them

to attend a school event. Depending on the nature of your trip, getting a hold of you may not be

easy (e.g., if you are on a cruise ship with little access to phone or email). Ultimately, your child

will likely be treated medically, but the chosen caregiver may encounter additional roadblocks

trying to obtain medical services for your child, and they may not be able to make critical

medical decisions when needed.

With an Estate Plan:

Most states recognize a document that allows you to delegate your authority to make decisions

on behalf of your child to another person during your lifetime. You still maintain the ability to

make decisions for your child, but you empower another person to have this authority in the

event you are out of town or cannot get to the hospital immediately. This document allows your chosen

caregiver to make most decisions on behalf of your child, except for consenting to the

adoption or marriage of your child. The name of this document will vary depending on your state

and is usually effective for six months to a year, subject to state law. Because this document is

only effective for a certain period of time, it is important that you touch base with us to have new

documents prepared so that your child is always protected.

We Are Here to Protect You and Your Children

Being a parent is a full-time job. We want to make sure that regardless of what life throws at

you, you and your child are cared for.  Give us a call at 352-377-6600 to learn more about how we can

ensure that the right people are making decisions for your child when you cannot.