As a father of three young children, I understand that caring for them is my single most important responsibility. It’s a 24/7 job, and the core of it is ensuring they are safe, loved, and cared for by people I trust, no matter what. If you’re a parent, you know this feeling. It’s the driving force behind everything we do.
In the legal world, estate planning is the primary tool we use to provide this protection. Specifically, this involves selecting and legally documenting guardians—the people legally named to care for your children in the event something happens to you.
Most parents believe that by naming guardians in their will, they’ve checked this box and can rest easy. You might be shocked and horrified to learn that this single step—the one most people think is sufficient—can leave your children terribly at risk.
Even if you’ve named guardians in your will, perhaps with the help of a lawyer, your kids could still be at risk of being placed in the care of strangers. This is a terrifying thought, and it’s a massive blind spot in the traditional approach to estate planning that many lawyers, unfortunately, miss.
The “Blind Spot” Most Parents (and Lawyers) Don’t See
Why is a will insufficient? How can this be? Traditional estate planning has historically focused on the elderly. Think about it: the primary goal was distributing a lifetime’s worth of assets after death. Family structures were often simpler, and the immediate, urgent needs of minor children just weren’t the focus.
A will only goes into effect after you have died, and after it has been located, presented to a court, and verified by a judge. This process alone can take days or weeks. A will does absolutely nothing to protect your children in the event of your incapacity (like a sudden car accident or a serious medical emergency). It has no legal power while you are still alive.
Furthermore, a will doesn’t name short-term guardians who can legally take custody of your children immediately. If you were in an accident, police would arrive at your home to find your children with a babysitter, or perhaps alone. Without a clear, legal document they can see right then authorizing someone to take immediate care, their hands are tied. Their only option is to call Child Protective Services.
Your children, already scared, would be taken from their home and placed in the care of strangers while the authorities try to locate your will (if they even know where to look) and figure out who you named as long-term guardians. Even a few hours in foster care can be a bewildering and traumatic experience for a child who has just lost their parents.
6 Critical Questions to See if Your Kids Are at Risk
If you’ve already named guardians, you might feel secure. But ask yourself these questions to see if your current plan has a dangerous gap:
- What if you’re incapacitated? Your will doesn’t apply. Have you created a separate, legally sound plan for guardianship if you are in an accident but do not pass away? Without one, your family would have to petition a court to appoint a guardian, a costly and stressful process, while your kids are in limbo.
- Who takes your kids tonight? If your named guardians live hours away (or across the country), or are simply on vacation, who has the legal authority to care for your children until they arrive? Without this specific short-term plan, they are likely to be taken by social services. The trauma of that interim period is completely avoidable.
- Did you name backups? Life is unpredictable. What if your first choice is unable to serve due to their own death, illness, a financial setback, or simply a move across the country? Without backups, the court will be choosing your child’s guardian from scratch.
- Did you name a couple? If you named a couple (e.g., “my-sister-and-brother-in-law”) and they divorce or one of them passes away, what happens? Would you still want the remaining person to be the sole guardian? What if their divorce is messy? You must be specific to avoid your child being caught in the middle.
- Can anyone find your documents? If you didn’t make it home, would your caregivers or the authorities even know where to find your will? If they can’t find it, they can’t follow it. Again, authorities are left with no choice but to call CPS while they try to sort out the legal mess.
- Do your guardians know what to do? Have you provided clear instructions for your guardians? Do they know where your assets are, what your wishes are for your kids’ education, health, and upbringing? Do they know about their allergies, their doctors, their daily routines, and your core family values?
A Comprehensive Solution: The Kids Protection Plan®
These complexities are exactly why we specialize in legal planning for the unique needs of families with minor children. At Horizon Law, we don’t just draft a will and call it a day. That’s not enough. We use a comprehensive system known as the Kids Protection Plan® to ensure your children are protected from every angle.
This plan is a set of legal tools and instructions that ensures:
- You name short-term guardians who live locally, are vetted by you, and have the legal authority to be with your children immediately, preventing that terrifying knock on the door from CPS.
- You name long-term guardians and backups, with clear instructions about what happens in scenarios like death, incapacity, or divorce.
- Your plan works in cases of incapacity, not just death, by using a separate, robust legal document that empowers your chosen guardians immediately.
- Your caregivers and guardians have clear instructions on what to do, who to call, and how to find your legal documents.
- You receive an ID card for your wallet that will alert authorities to your plan and your named short-term guardians. This simple card can be the key to bypassing the entire child protective system and getting your kids into the arms of people you love.
Guardianship Is Just the Beginning
While selecting and naming guardians is the most urgent task, it’s just the start of a robust plan. To truly protect your children, you should also consider other tools, such as a revocable living trust.
A trust ensures that the wealth and assets you want your children to inherit are passed on efficiently. Without one, your assets get stuck in a long, public, and expensive court process called probate. Probate can freeze your assets for months or even years, leaving your guardians to pay for your children’s care out of their own pocket while they wait for the court to release your money.
A trust bypasses probate entirely. It keeps your family’s affairs private, makes your assets immediately available to your children’s guardians, and allows you to control how and when your children receive their inheritance. This protects them from creditors, future divorces, or even their own youthful mistakes.
Whether you have a plan that needs reviewing or you’re starting from scratch, the most important step is the next one. Don’t leave the most important people in your life unprotected for another day. This isn’t just about legal documents; it’s about a parent’s peace of mind. Contact us today to schedule a Family Wealth Planning Session and gain the peace of mind that comes from knowing your children are truly, completely, and legally protected, no matter what.
