THE BLOG

Where Are Your Children Going to Go?

04/28/2014 05:33 EDT | Updated 06/28/2014 05:59 EDT

Where are your children going to go?

I hope that everyone who has children has taken the time to get a will. If you do have a will I hope you've made arrangements for someone to be the guardian of your children. If you have, congratulations!

However, what arrangements have you made for your children if you're incapacitated?

Not too long ago, a husband and wife with two young children were involved in a horrible accident. The father was killed, the mother severely injured and the children escaped with minor injuries.

The father's will had left everything in his estate to his wife and left the children in her care. There were provisions in their wills for guardians in the event of a common disaster (both parents dead) which left the children in the care of his brother and sister-in-law who lived in another country. A problem arose when she didn't die. Her will wasn't triggered but her power of attorney (POA) was.

Like most POAs, the mother stated that her husband was her primary attorney and, in the event that her husband was unable or unwilling to act, she named her sister as an alternate attorney.

A power of attorney gives someone the legal right to deal with your financial affairs, but what about your children? Children are not property and as a result are not normally dealt with in a POA -- but should they?

In the above-stated case, the decision as to what to do with the children was very difficult. With the children's father dead and their mother incapacitated, the family was confused about what to do. Do they keep the children in their own home and bring in a family member or friend to temporarily (or indefinitely) care for them? Do they move the children in with someone in the immediate area? Are they supposed to send the children to live with their aunt and uncle in the United States? In the event of a lengthy incapacitation, what right does the attorney have to allocate funds to the children's guardians?

Many childcare decisions that appear to be straightforward can be made extremely complicated upon incapacitation. Since you will not be able to provide any input, your wishes can only be executed based on the information at hand.

With this in mind, the more you document your intended wishes, the more likely these wishes are to be applied. While there are many hypothetical situations that could potentially make your wishes difficult to follow through on, the more information you are able to leave for an individual acting as your power of attorney, the easier their job will be.

If you think that your children are of an age where they can understand the implications of possible guardianship, it may be helpful to include them in your decision process. In many cases, the children themselves could outline some potential issues that you may not have considered. Since it is ultimately a decision regarding their upbringing, if they are old enough they may want to have input on this potentially life-changing decision.

What do you think should happen? How about all of the other decisions that have to be made? Do you keep the children in their current schools or move them closer to the ultimate guardians? In the event of your incapacitation, your loved ones will be faced with many decisions. Why not use your POA to communicate your wishes and offer guidance during a very difficult time?