GUARDIANSHIP OF A CHILD
If something were to happen to you, who would take care of your child? With a will or trust you can nominate someone you trust to care for your child. Today, we’ll go through the difference between guardianship and conservatorship, plus how to set an age of inheritance with your estate plan.
John and his family.
Who should be the guardian of my child? No one wants to think about predeceasing their kids, but it's better to be prepared for the worst and live with peace of mind. This is a very important question when we meet with families with children under the age of 18. As part of an initial estate planning meeting, we go through your assets (value of your home, retirement account, bank accounts, etc.) and often parents’ most valuable asset is their children.
WHO SHOULD BE THE GUARDIAN?
As part of an estate plan, you are able to nominate the guardian of your child. This is the person who's physically responsible to make sure your child is raised, if both parents are deceased and unable to do so. The best person to be the guardian is someone you trust to step into your shoes as a parent and raise your child, or children, the way you would have.
This should be the person who you think could fill that role right now. It's easy with estate planning to get ahead of yourself. We often think: in five years this...and in ten years this... But it's very important to make an estate plan based on right now. How old is your child? Who are the potential guardians? How old are they? And base your decision on what if you died yesterday? (We don't like saying "if you died today or tomorrow"- yesterday already happened)
CONSERVATOR VS. GUARDIAN
An important aspect of naming a guardian is knowing the difference between a guardian and a conservator. A guardian is responsible to physically care for your child. A conservator is responsible to manage the finances for your child. They can be the same person, but they don't have to be the same person. The best caregiver for your child might not be the best at managing money, and vice versa.
WILL VS. TRUST
If you use a will to nominate a guardian and a conservator, the conservator is in control of the finances until that child attains the age of 21. If you do not want your child to have full control over their inheritance, or whatever's left of it, when they turn 21, then you need to use a revocable living trust. Using a trust allows you to nominate a trustee instead of a conservator. The trustee is responsible to make sure the finances used for your child's health, education, maintenance, and support are taken care of, until whatever age you think is appropriate.
Your trust document stipulates how long that person is responsible for managing funds. It can be until that child attains the age of 25 or 30, whatever age you think would be more appropriate than a 21 year old receiving full control over their finances. Using a trust also allows for more control over how an inheritance is used. In your trust you can appoint the trustee, responsible for the finances, and the guardian as well (who may or may not be the same person).
We hope you found this information on nominating legal guardian in Hawaii helpful. If you have any questions please comment below or contact us.
BIOS
JOHN ROTH
John is the founder of Hawaii Trust & Estate Counsel, a statewide Hawaii estate planning law firm with offices in Waimea, Hilo, Kona, Maui, and Honolulu. He has taught Estate Planning at the Richardson School of Law, and business law courses at the University of Hawaii—Hilo. He started “Just Ask John” as a monthly newspaper column answering commonly asked estate planning questions, in the North Hawaii News, then in The West Hawaii Today. Now it’s an online blog and video series. ....MORE
MAKE AN INFORMED DECISION
Estate Planning is necessary because, as the old expression goes, "You can't take it with you" and you never know what's going to happen in life.
The estate planning documents of a will, advance health-care directive, power of attorney, and sometimes a trust help someone step into your shoes to make decisions on your behalf, during your lifetime. Then after your lifetime, you may need a will or will substitute, such as a revocable living trust, if they want to control who inherits their property and how and when that inheritance is received, to minimize administration costs, and to avoid unnecessary taxes. A well-planned estate is a gift to your loved ones and provides you peace of mind. It is part of your legacy.
Everyone has a different story and should have a unique estate plan. In most cases, the first meeting with one of our attorneys is complementary and serves the purpose of understanding your goals and educating you on your options. Depending on the option that is right for you, we will give you a price quote at the first meeting, before moving forward with your plan. Feel free to explore the basic information on our website.
This blog does not contain legal advice. You should not rely on this to determine what is in your own best interest. For legal advice, specific to your situation, you must meet with an attorney. All posts are based on hypothetical scenarios, not the actual circumstances of real clients.
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