On September 10 I spoke to a room of parents at the Cambria Hotel in Calabasas. This is the heart of that talk, written down for the people who could not be there. If you were in the room, this is the version you can hand to your sister.
Here is a scenario I use in almost every consultation. You go out on a date night. A sixteen-year-old neighbor is babysitting. At ten o'clock she calls you and cannot reach you, because there has been an accident. At eleven, at twelve, her mother tells her to come home. Who does she call?
Every room answers the same way. The police. And the police are kind people in uniform who will not hurt your child. They will also call Child Protective Services, because there is no adult in charge, and no paper anywhere that says who should be. That is the trauma I want you to picture. Not the accident. The hours after it.
Most parents I meet believe this is handled. Their sister knows. It came up at Thanksgiving. They have a will. Their parents have a will. What I want to explain is why none of that counts, and what does.
The Family That Changed How I Practice
A husband and wife with two children. A regular Wednesday afternoon. The kids were at school, and the parents never came home from a car accident.
It was a large, close Armenian family. Grandparents, uncles, aunts, siblings, all of them ready and willing to take the children in. And none of them could. The school had no authorization to release the children to anyone. Child Protective Services stepped in. Then the relatives, each of them acting out of love, fought each other in probate court over who should be guardian. It took the better part of six months.
Two children lost their parents, and instead of sleeping in the home of someone they loved and trusted, they were placed with strangers while the adults litigated. I still get goosebumps telling it, because every part of it was unnecessary. The parents simply never put it in writing.
Four Moments When Someone Has to Be in Charge
Authority over a child is never assumed. It is granted, either by you in a document or by a judge in a courtroom. At each of these four points, somebody will hold that authority. The only question is whether you chose them.
The first hours
Who can pick your child up from school, from daycare, from the babysitter, tonight? This needs a name, and the name needs to be on paper the school will honor. In California the document is a short-term guardianship designation. It is simple to prepare, it does not cost much, and it can be lifesaving. I tell clients to keep copies at the school, at daycare, in the glove compartment, and with the car seat.
And the free advice, which is not even legal advice: put a note on your refrigerator for the babysitter. Do not call the police. Call this person. Your neighbor, your sister, your friend. Someone your child already knows.
The first weeks
Schools will not release a child to just anyone. Doctors may not speak to the person caring for your child without authority to do so, and children need routine care, or urgent care, whether or not you are available. The same short-term designation carries the family through this window, before any court is involved.
The first months
Eventually a court is involved. Someone, usually a relative, petitions to be appointed guardian. If you have a will that nominates a guardian, the court reads your nomination and your reasons. If you do not, the court chooses among whoever raised a hand. Same process, entirely different result.
This is also where the letters matter. I encourage every client to write a letter to the guardian. What school you want. What activities. Which church. What your child is allergic to. Things nobody else would know. You cannot give the next person your instincts, but you can give them your knowledge.
The next fifteen years
Who raises your child until adulthood is named in your will. A few things I raise in every one of these conversations:
- Name alternates. Grandparents are often the first choice. Name who comes after them.
- Think carefully about naming a couple. Your sister is your blood. Her husband is her husband. Many clients name the sister alone, or name the couple unless they divorce.
- Talk to the people you name. Nobody should learn from a court that they were chosen.
- Revisit it. People move, relationships change. A nomination from years ago may name someone who now lives in another state.
Naming Who You Do Not Want
Judges cannot read minds. They read the file. If a parent walks in and asks to be appointed, the court will usually say yes, because that is the natural order of things, unless something in the file says otherwise.
So if there is a person you do not want raising your child, an ex-spouse with a substance problem, a relative who is toxic, you have to write that down, and you have to write down why. It belongs in your short-term designation, in your will, and in your letters, and all three need to say the same thing. Sometimes naming the person who cannot be the guardian matters as much as naming the person who should be.
What a Court Decides When You Have Not
Without a plan, a judge can end up deciding at least six things about your child: who has authority in the first hours, who raises them, who is kept away from them, whether siblings stay together, where they live and what school they attend, and who must report back to the court about their wellbeing and how often.
That last one surprises people. A court-appointed guardian reports to the court. If the same person manages the money, they report on that too. The court may appoint a separate supervisor, and that supervisor is paid from your estate. None of this is free, and all of it is public.
What Reaches Your Children, and When
Here is the other half of the problem. If you leave life insurance, retirement accounts, real estate, anything at all directly to a minor child, it sits. It cannot be touched until the child turns eighteen. Before that, the guardian has to petition the court for access and prove the need. And at eighteen, the child receives all of it, at once.
Very few parents actually want that. In a trust you can decide how it reaches them:
- By age. A portion at eighteen, more at twenty-five, the rest at thirty. Whatever fits your child.
- By incentive. On graduation, on full-time employment, on finishing a degree.
- At a trustee's discretion. Your child brings a plan, a business idea, a need, and the person you chose decides.
I usually recommend a combination. And I recommend that, while your children are young, the guardian and the trustee be different people. The guardian handles school, doctors, and daily life. The trustee handles the money. Each one can see what the other is doing. My mother would be the right person to raise a child and the wrong person to manage an investment account, and that is not a criticism of my mother.
One more story. A client told me she was single with no children and wanted everything to go to her church. As I was finalizing the paperwork, she broke down and told me about her son, and his addiction, and her fear that an inheritance would kill him within a day. I wrote an incentive trust instead. Money is there for him, on the condition that he is in treatment and stays clean, verified by a doctor. She left crying for a different reason. As a mother, she had found a way to leave him hope.
The Part Everyone Skips: You Are Alive, But You Cannot Act
Statistically, disability is far more likely than death. A stroke. An accident. A diagnosis. If you cannot act, who talks to your mortgage company, your bank, your insurance, Social Security? Being someone's spouse does not give you that authority. Being someone's child does not either. There has to be paper.
A couple came to see me about a trust. The husband decided I was too expensive. Two years later his wife came back alone. He had developed dementia, quickly, and she could not speak to his doctors or his insurance company. I had to open a conservatorship. In Los Angeles County, with an attorney, that runs around ten thousand dollars and takes months before anyone has authority to act. It is public record. And it does not end. A court-appointed investigator visits, reviews how she cares for him and how she spends their money, and is paid for it, for the rest of his life.
The alternative is a durable power of attorney, drafted properly. Mine run close to thirty pages, because I list everything. I have seen a two-page notarized form from a local paralegal rejected outright, and the County of Los Angeles move to conserve a man with real estate and accounts because he had no next of kin and his partner's document was too thin to honor. I fought it and won, but nobody should have to.
A good power of attorney names a backup, stays effective through your incapacity, and can be written to take effect only when a doctor certifies you cannot act. Lodge a copy with your bank. Make sure your person knows where it is.
The Complete Plan for a Family With Young Children
- Short-term guardianship designation, so someone can step in tonight.
- A will with your guardian nomination, and your reasons, for the long term.
- Financial power of attorney, so someone can act for you if you cannot.
- Advance healthcare directive, so someone can be at your bedside and speak for you.
- HIPAA authorization, so they can see your medical records.
- Revocable living trust, which holds it all together and lets you decide what reaches your children and when.
- Letters to the guardian, the part only you can write.
For life insurance and retirement accounts, I generally suggest the trust as beneficiary rather than a minor child directly. That way the money flows through your instructions instead of sitting untouched until a birthday.
Every gap you close is a decision that stays with you instead of going to a stranger. That is why I say estate planning is an act of love. You buy car insurance without planning to crash. This is the same thing, for the people you would leave behind.
How This Works if You Want My Help
It starts with a conversation, about an hour to an hour and a half, in person, by video, or by phone. I ask about your family, your circle, who you trust with what, and what you own. I ask uncomfortable questions on purpose, because what couples write on an intake form is often not what they actually want. Then I build the plan around your family, and I file the real estate deeds with the county myself.
Book a free consultation, or call (818) 788-7881. If you have children under eighteen and none of the seven documents above, the short-term designation alone is worth the call.
My Next Free Workshop
If you missed September 10, do not miss the next one. On Wednesday, October 21, at 6:30 PM at the Cambria Hotel Calabasas, I walk through what a successor trustee actually has to do after a death: the first 30 days, the 60 day notice, and the mistakes that make a trustee personally responsible. It is free, and seats are limited. Reserve a seat, or join the wait list to hear about every workshop after it.
Attorney advertising. This article is general information drawn from a live presentation and is not legal advice. Costs, timelines, and court procedures vary by circumstance and by county. Contact MVP Law Group for advice about your own situation.