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Dear Harry,
I’m due to have a baby in a few months. I’d like to have a legal will in place should something happen to me either during childbirth or after. The child’s father and I are unmarried, though we are together. Unfortunately, there are two individuals in his life who present a safety threat, including a person who used heroin in the presence of my partner’s nieces when they were under the age of 10. How can I make sure that these people don’t get involved in the care of my child if I pass away or become incapacitated?
Dear reader,
That’s difficult. You can nominate a guardian for your child through your will to step in in the event of your death as well as nominating one in a separate document to step in in the event of your incapacity. But neither takes precedence over your partner’s natural rights as a parent. If the person you nominated went to court on your child’s behalf to seek to terminate your partner’s rights as a parent, your nomination would be given some weight, but would not decide the issue. The court would seek to determine what is in your child’s best interest and would typically give significant weight to maintaining a relationship with his or her father.
You may be able to give the person you choose to look out for your child more influence through economics. If you have any savings or own your home, you can create a trust to hold such property for your child’s benefit and name a responsible person to manage the trust assets on his or her behalf. This would at least give the trustee the power of the purse strings to make sure your child has a safe and stable home.
In terms of creating your estate plan, you can hire an attorney or use a number of online services such as LegalZoom or FreeWill. I don’t know if they include guardian nomination forms in case of incapacity which are more state specific than wills and trusts.
Harry S. Margolis is an elder law and estate planning attorney in Boston and Wellesley, Massachusetts. He is author of The Baby Boomers Guide to Trusts: Your All-Purpose Estate Planning Tool and answers consumer questions about estate planning issues at www.AskHarry.info.
Harry Margolis practices elder law, estate and special needs planning, and is the majority owner of ElderLawAnswers.com.
