The most important decision new parents must make in creating an Estate Plan or updating an Estate Plan is who they want to take physical custody of their children if they should be temporarily disabled or die. This person can be the same person or a different person than the one who is selected to care for the child’s finances.
To make this choice, it is important to understand the circumstances in which this person would assume this role and what their duties and powers would be.
In Washington, if there are two biological or adoptive parents who are both willing and able to care for a minor child and both are taking part in raising the child, then if one parent dies the other will have the right to assume full custody of the child, whether the parents are still married or not. If both parents die or are temporarily disabled so that they cannot care for their child, any willing and able adult can come forward and the court must choose between them based on the best interests of the child.
The person who takes physical custody of your child is known as the guardian of the person of your child. They are in charge of choosing where your child lives, health care choices, and education choices. They are also the ones to take over the key intangible parenting responsibilities of providing attention and affection and providing social, ethical, and religious training modeling.
While parents do not have to name the same person in their wills to serve as guardians it is usually better for all involved if they can come to an agreement so that it isn’t left to fate based on who dies first. You must also decide whether to name a single individual or couple. If you select a couple, the court will decide custody as between them if they should later divorce.
Most important, the person must be willing to accept the appointment and should ideally be willing to be spend some time talking to you about what your expectations are and establishing a strong relationship with your child while you are alive and healthy. Don’t forget that this isn’t a draft. Ask the person you select to make sure they are able and willing to serve in this capacity.
Need some insight on the process of choosing someone? We're here to help! You can contact us via email or call 206.459.1908.
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