Advice for Family Situation, Please

[Haven]

Hi everyone,

My BIL and SIL just asked to make us their children's legal guardians should something happen to both of them. We plan on saying an emphatic yes to that, but beyond that we're not sure what else needs to be done. So, here's my question:

What plans, if any, should we make in writing with them?

- Should they take out life insurance policies that would go into a trust for the children? My BIL and SIL are going through a terrible divorce which has left them with very little, so they wouldn't have anything else to leave the children. DH and I both work, but I'm concerned that we wouldn't be able to suddenly provide for both children on our own. (They are currently 9 and 12, by the way.)

- Are there lifestyle-type of things that need to be discussed in a will or something? I'm thinking of how they want the kids to be raised in terms of religion, where they'd want them to attend school, how often they'd want them to see my SIL's family, etc. (This is DH's brother and his soon-to-be-ex wife we're talking about here.)

Background:

First, obviously, I hope we'll never have to worry about any of this. However, this is a really important responsibility, and I'd like to make sure we cover everything that should be covered going into it.

My main concern is being able to fully carry out their wishes for their children, and while we plan on discussing these things with them, I would feel better to have things in writing, as well. Do people do this?

I'm very honored that they asked us, especially considering my SIL has five siblings of her own. We spend a lot of time with the kids already, and I imagine they made the choice that they felt would be in their best interest. Now, I want to be sure we can make good on that and we take whatever precautions we can before moving forward. We have no concerns about whether or not we should accept this responsibility, we've already spent a lot of time discussing that.

Thank you so much for your advice.

ETA: I should share that some of my concerns about getting things in writing are based on the fact that we are not close with my SIL's family. In the event that something happened, we would suddenly become a part of their family, and so I would like to be sure that my SIL's and BIL's wishes are clearly articulated somewhere so we could avoid some potential battles over how to raise the children. Our families are very different, so that is why DH and I feel that some issues could come up. I hope I'm not being too vague. If so let me know and I'll try to provide some more concrete information.

 

[Pandora II]

I can give you some thoughts as we are going through the decision of deciding who of our siblings to ask to be Daisy's guardian.

Financially - she would benefit from life insurance policies and two properties. Some of this would be put in trust to pay for her education and then go to her on her 21st birthday (older if we can swing it), and some would go to her guardian in order to pay day to day expenses and potentially allow for a bigger house if that was needed.

Lifestyle - we are both atheists and would prefer that Daisy was brought up as an atheist but are not opposed to her being exposed to different religions (vaccination so to speak ). We would want her to be privately educated. We would want to ask for a certain amount of contact with both our families.

I think a verbal discussion is a good idea to make sure you aren't fundamentally opposed to anything, and then leave a sheet of written wishes with the will.

Obviously I hope that we will never need to use any of this, but better have everything organised up front!

 

[Allison D.]

Haven, I'd probably have them cover the majors items (religion, schooling, etc) in writing - vaguely.

The other thing I'd do - have them write something to the effect of "we've fully discussed our wishes with Haven and Mr. Haven, and we trust them to make decisions in keeping with our wishes. If at any point there is doubt about what we'd want, we'd want everyone else to honor the choices of Haven and Mr. Haven. We chose them because we trust their judgment, and they have the final say on anything that relates to our children."

 

[Octavia]

Haven, I would definitely request that they get life insurance with a trust for the children as the beneficiary. You probably can't ensure they will maintain the policies unless you pay the premiums out of your own pocket, but if you don't ask, they might not even think about it. I'd also ask whether they intend for you to be guardians of both the childrens' persons and finances (and/or trustees of the children's trust), since those jobs could be split. It would suck to be in a situation where you and your DH are caring for them and the SIL's family gets to decide when disbursements are made. In addition, find out about the way the trust will be set up and how funds will be disbursed, since there are many different possible arrangements. I agree with the others that religion and education should be loosely spelled out with a disclaimer that what you and your DH feel is best overrides that if the situation warrants it. If they're using a lawyer to draft their wills, this information would probably be included, but again, I feel it's important to specifically ask them to do it just in case. I'm not sure if I'd want the "contact with SIL's family" part spelled out in writing, IMO I'd rather have an oral agreement about that because you never know what will happen and it sounds like a tense situation already. If SIL's parents move to Florida, you don't want to have something in writing saying the kids should visit them every other weekend, you know?

 

[Cehrabehra]

Haven, I think it is important for you to get things down on paper for your own reference and peace of mind, but that most things should not be stipulated exactly because the job of raising children is too complex to foresee every situation and most decisions will have to be made with the Childs best interests at heart and their needs simply change. Having a contract that forces your decisions may NOT be in their best interest at that time. Having contracted time with important people isn't even good. If a family member becomes a bad influence in any number of ways, alcoholism as an example, they are trusting you to make the decision for them and you don't want to have to prove your case in court to do what is really in their best interests. Arm yourself with their desires understanding that you will be the only and final say in the actual decisions.

 

[lbbaber]

Haven, I would definitely have everything outlined in a living will. This is standard practice and almost any lawyer can assist you with this (probably even their divorce lawyers). It needs to be legal or there will be alot of headache and red tape to cut through should, God forbid, something happen to them. In a worst case scenario, if there was no legal record of their request, you might not even get the children should another relative decide to make an issue out of it. You dont want the children to have to worry about where they are going to live while you fight for them during such an AWFUL time in their lives. It is a simple and inexpensive process to have something written up "just in case". I know because I am appointed to take care of my minor autistic brother should my parents pass.

Also, you mentioned life insurance. I know that when I went through my divorce a few years back, my Ex and I were BOTH REQUIRED to take out a life insurance policy in the event something was to happen to either one of us. As the judge/lawyers put it "the child will still need support even if you are not here" (yes, my EX complained when he heard he had to but they shut him right up!!!). It is a smart decision and if they do this too then there will be insurance $$ should something happen (and lets face it, you will need it no matter how wealthy you already may be). Just have them write the policy so that it goes into a trust for the children and outline who is to control the trust in the event of an emergency...(ie, if one person dies the other parent comtrols the trust...if both parents die then "so in so" controls the trust)

It is actually easier than it sounds and being that they are already going through divorce, I am sure that their lawyers can handle this. I know that my divorce lawyer did an excellent job for me when I went through it.

On another note, good for you for stepping up That is not a decision taken lightly and I have alot of respect for those that are willing to put other's needs above their own. The children will be lucky to have such a caring family to go to if needed...but lets pray it never is

Edited for spelling/grammar....it was awful-lol

 

[Haven]

Thank you all so much for your input. Excellent advice all around. I'm going to take some time to consider it all very carefully. I specifically appreciate the wording you provided, Allison, I think that is going to be extremely helpful.

Octavia--Thank you for the details about guardians of the children's persons and finances, I didn't even know there was a distinction. Very important.

I absolutely agree that specific stipulations about XX amount of time with XX family members should be avoided.

Again, thank you. This is exactly the sort of information I needed.

 

[Jennifer W]

I think the other thing you should look into is how and when you would acquire parental responsibility (or equivalent) over the children. It will depend on the law where you live (or possibly where they live, if it differs). Here, it isn't within a parent's gift to 'will' their children to anyone. You can state your preferences, and you can arrange finances accordingly, but children without parents will most likely become Looked After Children, with the local authority taking parental responsibility in the short term. You'll then have to work with social services to have your fitness as foster parents assessed. You'll need background checks and disclosure (criminal record check). While there will be a presumption in your favour, it isn't an irrebutable presumption and you may still have a lengthy and potentially intrusive process to go through, with you, your husband and even any regular visitors to your home placed under scrutiny. If there's anything that even remotely concerns a social worker (and I mean ANYTHING) it's possible that the children may not live with you during this process.

You will need to have some form of guardianship, or formal parental responsibility or permanency order (or whatever it is called in your state) or you may even consider adoption. You would need this to be able to act for the children, for example giving consent (or otherwise) to medical procedures in an emergency.

I would look into the legal requirements, so that if the worst happens, there are no surprises, and you aren't wondering what the heck you have to do. You will also be better placed to explain what's happening to the kids.

This won't all be the same where you live as it is here, but it will most likely be less straightforward than just taking the children home with you and you probably need to find out in advance.

ETA I think the other thing you need to do (if you don't already) is spend every minute you possibly can with the children. Because if they barely know you, and if the worst thing happens, they may not want to come with you, and may want to be with someone from their mother's family that they're closer to. You might want to think about how to plan for that, and be aware that your rights over the children could be contested by other potentially closer relatives. I'd find out what the legal position will be where they live in those circumstances. I would also spend time with them because knowing what I know now as a parent, I can't imagine how I'd have suddenly coped with two distraught, grieving children and no practice or experience of caring for children. Not trying to put you off or be negative about it, but DH and I have just gone through the process of planning for our own child, so all this stuff has been discussed a lot here.

 

[suchende]

I am wondering how realistic it is to raise children in accordance with someone else's wishes. Beyond perhaps making sure they're attending religious services and visitation with relatives, how much can you really do to respect a deceased parent? Raising teens is hard enough without adding a layer of complexity. Seems like a recipe for unnecessary guilt. It seems to me the most anyone can expect of a godparent is that the godparent would raise the birth parent's children to the best of their ability, as they would raise their own children.

 

[Haven]

I am wondering how realistic it is to raise children in accordance with someone else's wishes. Beyond perhaps making sure they're attending religious services and visitation with relatives, how much can you really do to respect a deceased parent? Raising teens is hard enough without adding a layer of complexity. Seems like a recipe for unnecessary guilt. It seems to me the most anyone can expect of a godparent is that the godparent would raise the birth parent's children to the best of their ability, as they would raise their own children.

I understand what you're saying, and I agree to an extent. I certainly am not looking for a life plan for each child, with each year's expectations detailed or anything.

My biggest concern is honoring their larger wishes for what they want for their kids with respect to what sort of education they'll receive, both secular and religious, and balancing that with any potential battles we might face with my SIL's family over how we choose to parent the children. I think Allison's wording was exactly what I was looking for to speak to my latter concern, actually.

The fact that they are currently divorcing, and that my BIL is Jewish and my SIL is Christian, makes their wishes for religious education a mystery to me. The children attended a private Jewish school until just this year, and since the divorce began my SIL has expressed a desire to change the way they've been raising the kids. We're a tight family, but the changes associated with this divorce lead me to have many questions about their wishes for their kids.

Overall, I'm just looking for feedback about how other people handle this situation. I just want to go into it with as much knowledge as possible. I hope to thedeityofyourchoice that we never have to carry out any of this, anyway. But I do think a bit of research is prudent.

 

[Haven]

Jennifer--Thank you for the information about the muddiness surrounding acquiring parental responsibility. This is the sort of thing I really want to learn more about.

As for spending time with the kids, we do, that's not a concern at all. We are very close with them, they sleep over at our house once every week or other week, and we spend at least one day with them every week. I think we're really lucky to play such a large role in their lives. We bought our house in their neighborhood, and this is one of the benefits to doing that. I also spend a lot of time with them in the summers when I'm not working, as well.

Since the divorce proceedings began, especially, we've been spending as much time with them as possible. They're living with my SIL and her sister's family in a suburb that is very different than the one where they grew up. It's been a tough transition. The house is very cramped, and filled with a lot of things, very messy, and the town is just so different from what they're used to. They switched from living in a nice big house to this chaotic one, and attending a private Jewish school to attending a public school where they are the only Jewish kids. (Not a bad thing necessarily, but a big transition for them. They've been teased a bit, as many of those kids have never met a Jewish person before, and apparently some of their parents are a bit anti-Semitic.) ANYWAY, they spent a lot of time in our home and with us before the divorce, and now I think we are the only stable thing in their lives that hasn't changed tremendously.

You haven't put me off at all by mentioning this, I think these are exactly the things we need to be considering right now, so thank you.

 

[Jennifer W]

It sounds as though you are the right people for the job. Knowing the children and spending time day to day with them is probably far more important that anything else (especially if you find yourselves under any sort of official scrutiny). I hope it never happens, but if it does, you're going to be prepared to help them through it.

 

[VRBeauty]

Haven: Kudos to you and your husband for embracing this request and not being scared off by the complexity. My first instinct was the same as Alison's - your BIL and SIL have asked you and your husband to take on this potential responsibility precisely because they trust your judgement. That said, having a conversation with them about their expectations, and getting the "big picture" concerns and expectations in writing, could be important should you ever be called on to carry out these responsibilities. Since the parents are divorcing, that conversation might even help identify and resolve ambiguities between their respective expectations.

Good luck.

 

[PinkTower]

I have a comment re: the other five siblings who were not asked to be guardians.
When we chose guardians for our children, we did so very quietly. Of course, the document never had to be used, and the other parties to this day do not know it ever existed. I think this is the way to handle the situation, as it can cause undue hard feelings.

 

[Haven]

I have a comment re: the other five siblings who were not asked to be guardians.
When we chose guardians for our children, we did so very quietly. Of course, the document never had to be used, and the other parties to this day do not know it ever existed. I think this is the way to handle the situation, as it can cause undue hard feelings.

That's a great point. I imagine they aren't planning on saying anything to anyone, but I'll mention that it might be best, just in case. Thank you.

 

[anchor31]

I have a comment re: the other five siblings who were not asked to be guardians.
When we chose guardians for our children, we did so very quietly. Of course, the document never had to be used, and the other parties to this day do not know it ever existed. I think this is the way to handle the situation, as it can cause undue hard feelings.

That's a great point. I imagine they aren't planning on saying anything to anyone, but I'll mention that it might be best, just in case. Thank you.

That's an interesting point. I guess it depends on the family. When DH and I asked my brother and SIL to be our son's legal guardians if something happened to us, we did so for specific reasons (married, starting their own family, similar religious and parenting philosophies). We made a point of telling our other siblings and parents so that it wouldn't come as a surprise at a time where things are already stressful and tensions can run high. My sister was disappointed (she expected her role as godmother to extend to that), but we explained our reasons to her and she understood.

 

[Jennifer W]

We've done the same - everyone knows who will care for A, and why. Any disagreement can be discussed now, rather than when the issue arises. That doesn't mean it would never be contested, but anyone contesting it would know that J and I will be angry and will firmly disapprove of what they're doing (from beyond the grave... ). We also arranged for who will care for her if the people we nominated can't, or if anything happens to them before she's independent.

The main point though, is that we can't 'will' our children to anyone. They aren't treated as property. We can only make our wishes known and tie up financial arrangements to support those wishes. In the end, it will be a decision for a court to take, made in A's best interests. We won't really have a say.

 

[lbbaber]

The main point though, is that we can't 'will' our children to anyone. They aren't treated as property. We can only make our wishes known and tie up financial arrangements to support those wishes. In the end, it will be a decision for a court to take, made in A's best interests. We won't really have a say.

Actually, you can. It's called a Child Guardianship Clause and it is usually put in a living will. I mentioned this in my previous post and strongly recommend it if you have children Then there will be a legal record of your desires.

edited to add this link to a website that has legal forms for those wishing to have a legal will (DIY sort of stuff but I would use a lawyer)
http://www.legalforms.name/child-guardianship-clause.php

 

[PinkTower]

One more point-DH is a lawyer, but we had an estate lawyer draw all this up. I was agonizing over the writing, and the attorney reminded me that in this state the max. age for the child to be told who their guardian is is 14.After that, they can choose their own. Since my children are 9 years apart, that influenced my decision.

 

[diamondseeker2006]

We have been asked by one friend and a couple of siblings to be guardians for their children. In none of those cases did we ask for anything in writing nor did we discuss it a lot. It is extremely rare for both parents to die while the children are underage and even moreso when the couple is divorced and won't be traveling together, etc. I think it is important for them to tell someone, such as their parents, who the guardians would be. But other than that, I agree with those who said they are choosing you and your husband because they trust you to raise them, so you don't need to get into more detail at this time when they are going through so much other emotional trauma.

 

[Logan Sapphire]

My twin sister is my children's named guardian, with my parents as back-ups and my aunt as a second back-up. These choices have been stated in our wills. We each have a life insurance policy (required by our adoption agency). I *think* my sister is also the estate's executor, but I can't quite remember. My sister knows exactly how much life insurance there is. We're leaving it up to her discretion whether she would want to sell our house or use some of the money to pay it off. There is also $$ in our kids' trust fund that they will not be able to access until they are 25.

 

[Haven]

All of these details about different legal concerns we should have is very helpful everyone, thank you.

Diamondseeker--Thank you for your input. Please don't misunderstand--I am not putting my BIL and SIL through any unnecessary discussions during this difficult point in their lives. I am not insensitive to their position. That being said, I do not think it wise to accept such an enormous responsibility without first considering what should be considered before actually accepting it, though, and that is what I'm trying to do with this thread.

 

[Jennifer W]

The main point though, is that we can't 'will' our children to anyone. They aren't treated as property. We can only make our wishes known and tie up financial arrangements to support those wishes. In the end, it will be a decision for a court to take, made in A's best interests. We won't really have a say.

Actually, you can. It's called a Child Guardianship Clause and it is usually put in a living will. I mentioned this in my previous post and strongly recommend it if you have children Then there will be a legal record of your desires.

edited to add this link to a website that has legal forms for those wishing to have a legal will (DIY sort of stuff but I would use a lawyer)
http://www.legalforms.name/child-guardianship-clause.php

That's just exactly what it is - a legal record of your wishes. It isn't binding on any court, and in a child-welfare based jurisdiction, it is a court that will decide on any form of permanency order (because it's an order of the court). The court may choose to have regard to it, or not. I'm basing this on what I know as a lawyer in the UK, it could be very different in the US, and could vary by state for all I know, but I'm not aware of any jurisdiction that would allow a permanency order on the basis of a parent's will only. That's my point really, Haven needs to find out what the law is in the state where the children live.

ETA the link you posted says exactly the same thing - the court needs to appoint a guardian and can be guided by your wishes but will appoint on the welfare principle (child's best interests are paramount).

 

[Ninna]

Great advice given. Asking someone else to assume this role in their behalf can be daunting.
I can't agree more with Pink Tower. Picking a second set of legal guardians is a great idea where we live. Children over 14 can refuse or change the ones picked by their parents; many hedaches can be avoided when there is a second option.
I usually avoid religion on boards but, I would like to point out that courts will entrust the care of a child to someone with the same religious background as the minors. In this case, please be prepared and welcoming to emergency guardians.
Life insurance: Ideally, you want the children as beneficiaries [something worth keeping the 'cool' over when divorcing] people often procastinate or simply change the beneficiary [new partner or 'best friend'] as soon as they can.
One of my brothers, DH and I share formal appointment of our two nephews as our oldest brother has been battling a liver disease for 3 years now.
IMHO, this should be done when parents are willing to give and plan their kids future in a cool mode, it may be a bit too challenging while divorcing

 

[lbbaber]

The main point though, is that we can't 'will' our children to anyone. They aren't treated as property. We can only make our wishes known and tie up financial arrangements to support those wishes. In the end, it will be a decision for a court to take, made in A's best interests. We won't really have a say.

Actually, you can. It's called a Child Guardianship Clause and it is usually put in a living will. I mentioned this in my previous post and strongly recommend it if you have children Then there will be a legal record of your desires.

edited to add this link to a website that has legal forms for those wishing to have a legal will (DIY sort of stuff but I would use a lawyer)
http://www.legalforms.name/child-guardianship-clause.php

That's just exactly what it is - a legal record of your wishes. It isn't binding on any court, and in a child-welfare based jurisdiction, it is a court that will decide on any form of permanency order (because it's an order of the court). The court may choose to have regard to it, or not. I'm basing this on what I know as a lawyer in the UK, it could be very different in the US, and could vary by state for all I know, but I'm not aware of any jurisdiction that would allow a permanency order on the basis of a parent's will only. That's my point really, Haven needs to find out what the law is in the state where the children live.

ETA the link you posted says exactly the same thing - the court needs to appoint a guardian and can be guided by your wishes but will appoint on the welfare principle (child's best interests are paramount).

Yes, I know what the link I posted states. I have a legal will w/a guardianship clause for my children and I am listed as a guardian in someone else's will. I do realise that the court has the ultimate say and will base it in the best interest of the child. The guardianship clause guarantees that the parents' desires will be made known. If parents feel strongly about who they would like to raise their children, it is in their best interest to have it in a legal document. It a simple process here in the States. I just thought it was an option the OP should know about.

 

[diamondseeker2006]

Haven, I wanted to be sure that I think it is fine that you are thinking this over carefully and seeking some input here! I didn't mean to sound critical at all!

As a parent, I remember thinking through all this years ago. We had insurance and a home that would have provided for our children if anything had happened to us, and I hope the parents of these children will be able to plan accordingly. When we were asked by our friends and siblings, I did not ask this information partly because I thought it extremely unlikely to ever happen, also because I knew they had houses and cars and other assets that could be turned into funds for the childrens' benefit, and I knew we were willing to take the children in that situation even if there was no money because we loved them and they would have done the same for ours. I think this would be the best question to ask ourselves...do I love my friend/relative and/or their children enough to do this if it ever did happen?

 

[Haven]

Oh, I know, Diamondseeker! You are so very helpful to so many here on PS, I definitely didn't think you were being critical. I see you spending all that time helping people you don't know in RT! My response was really more of a thinking while typing sort of thing, and I really did appreciate that input because it gave me pause to consider whether any of this was necessary to worry about.

We love our niece and nephew very much, and we would take them in no matter what. Since we have the opportunity to think about these things though, I'm going to think about them! I do suffer from analysis paralysis at times, though, so I think it's good to remember that these things can be thought over too much.

I have learned so much from this thread, and it's really given me a lot to consider. I really, really appreciate everyone's input. I think part of me was just so overwhelmed with this proposition in the first place (as unlikely as it is that it will ever come to this) that this thread gave me a chance to really feel out my feelings about it all.