Finding new parents for your children

If you die, who will care for your offspring? Your will should spell it out

July 21, 2002|By Sun Staff

For Colleen Cavanaugh of Timonium, the revelation came like a thunderclap during an otherwise ordinary car ride with her husband.

What would happen to their infant son if both his parents perished in an accident at that very moment? Less than a week after that thought crossed her mind, she had her lawyer rewrite their will to assign a guardian.

The irony, of course, was that Cavanaugh is an attorney. So is her husband, Michael Warshaw. But although both knew they ought to name a guardian in their will, it still turned into a scramble to fill out the paperwork.

"A lot of people have that minute of panic," says Cavanaugh, 33, who specializes in family law. "(Now), I can understand how that happens."

Why do couples delay? Other than apathy (and for some, expense), the biggest reason is probably that it can be a downright painful process. Not only must they contemplate their own mortality, but they may not see eye-to-eye over whom to appoint.

Husbands may not want their in-laws to have custody of the children. Wives may feel the same way. Throw in divorce, family estrangements, and religious and cultural issues, and the decision can get to be an ordeal.

Yet, in this post-Sept. 11 world, the morbidly unthinkable seems more thinkable than ever before. As a result, many more couples are grappling with the guardianship decision -- and writing or even rewriting wills to create guardianships in the event of their deaths.

"It's absolutely a painful exercise if you seriously think about it," says Fred Franke, an Annapolis lawyer who specializes in tax and estate planning. "It's emotionally one of the toughest things a parent has to do."

Complications

Who needs to assign a guardian? Any parent with minor children, according to legal experts. Failure to provide for that contingency could result in a family tussle over who should care for the surviving offspring -- a potentially painful battle for the children (and everyone else involved) that could take months or even years to resolve in court.

"Even the most simple situations can turn bad," says Sheldon S. Satisky, a veteran Baltimore lawyer who chairs the Maryland Bar Association's estates and trusts law section. "Yet I think most people don't have (guardians assigned in their wills). They'll talk about having them, but they don't get around to doing it."

For many couples, assigning a guardian is actually relatively easy. When they draw up a will, they must choose a person or couple to look after their children in the unlikely event they should both perish. Most commonly it's one parent's brother or sister, or maybe the childrens' grandparents, but increasingly, it may be close friends of the family.

But even if that choice is clear, the planning can still get complicated: Do you want the guardian to handle the children's money or choose a separate financial guardian? What if the couple you choose gets a divorce? What if they are older and become infirm? Often, couples end up choosing a successor guardian -- sometimes, more than one -- to take care of the kids if the first person assigned to be guardian is unable to do so.

"You have to provide for successors," says Franke.

Family lawyers say couples usually need some time to think these choices over. Sometimes, the issues are misunderstood -- like the divorced custodial parent who thinks the children can be assigned a guardian in her will, bypassing the non-custodial parent.

"Some people seem to think their children are property they can leave to the parents instead of their ex," says John Crouch, an Arlington, Va. lawyer and vice-chairman of the American Bar Association's custody committee. "It's disturbing."

Peace of mind

Unfortunately, even for families that write their wills and choose guardians, the issue may have to be revisited. Colleen Cavanaugh and Michael Warshaw had to rewrite their will two years ago when their youngest son, Ryan was born, joining his 5-year-old brother Kevin.

Their first choice for guardian was now a mother of three living out of state and it seemed imprudent to expect her to look after two more -- and for the two boys to live so far away from friends.

Still, for all the hassle, the couple now enjoys a certain peace of mind -- not unlike having an insurance policy that they hope to never cash in.

"People think, what's the likelihood this will ever be needed? Well, the likelihood of you and your husband being in a plane together sometime without your children is pretty high," says Cavanaugh. "After Sept. 11, I think a lot more people have come to realize that."

Putting your will on paper

Creating a will is not an inexpensive undertaking for most people. The cost varies -- usually depending on the document's complexity -- but couples could easily pay $1,000 or more for the most basic of wills.

As an alternative, there are a number of companies that sell blank forms and self-help models for couples who feel they can't afford a lawyer. One such outlet is the web-based Maryland Law On-Line (www.marylandlawonline.com).

Another possibility is to contact a local bar association for a list of non-profit organizations that can provide legal services on a "pro se" basis. The Maryland State Bar Association can be reached at 410-685-7878, Batimore City's bar at 410-539-5936, and Baltimore County's at 410-337-9103.

Those who want to hire a private attorney should consider contacting the American College of Trust and Estate Counsel (www.actec.org), a non-

profit professional organization of estate lawyers to get a list of accredited lawyers in their community.

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