Most parents who take the prudent step of drafting or updating their wills to designate a person to become the legal guardian of their child should both of them die or become unable to care for that child never have that unimaginable scenario occur.
Many of the things we plan for by doing things like buying insurance policies and keeping emergency “go bags” handy don’t occur. It’s crucial, nonetheless, to be ready if they do.
What if the person you designated to be your child’s legal guardian when they were born is no longer the appropriate person, but your child isn’t yet an adult? You can play the odds that you and/or your child’s other parent will remain alive and well until then. However, that’s not a good idea.
It’s not uncommon to require a change
There are any number of reasons why you may decide your chosen guardian is no longer the right person for that responsibility – even if they don’t initiate the change.
Sometimes, a family member’s health declines significantly. Maybe your chosen guardian who used to live nearby moves overseas. Perhaps your designated guardian married someone you don’t think would be a good influence on your child – or who already has a half-dozen kids. Maybe you just found someone else whose moral compass and views around childrearing align more closely with your own. It’s also possible that your child’s needs have changed due to physical, intellectual or emotional issues.
The legal process of changing your child’s prospective guardian can be relatively simple. If the only designation is in your will, you can use a codicil (addendum) to change the name. If there’s a trust involved, that’s a bit more complicated. Of course, you first need to make sure you have your new designated guardian’s full agreement.
What are your obligations to the original guardian?
While there’s not a legal requirement to tell them you’ve removed them of that responsibility, you owe it to everyone involved – especially your child – to do so, even if it’s a difficult conversation. If the worst-case scenario came to be, having two people who think they’re the guardian will be messy – and potentially costly. Even if it’s clear that you changed your will, this initial confusion could delay your child getting to their rightful guardian at a time when their world is already in tumult.
Every situation is highly unique. As with any change to your estate plan, it’s crucial to have legal guidance to make sure it’s handled appropriately and legally.