SELECTING A GUARDIAN: THE BASICS OF WHAT YOU NEED TO KNOW

Talk about a difficult conversation to have. Can you imagine a young couple contemplating – of their own volition mind you – a future for their child in which those same parents don’t play a central role? Almost as much as parents pray that their children will outlive them, parents likewise universally hope that they will be around to help guide and shape their children’s lives long into their adulthood.

While an uncomfortable conversation to have, estate planning asks parents to consider what will happen to their children in the hopefully unlikely event that their own lives are cut short before they can see their children into adulthood. While no parent wants to think about it, there is possibly no more important choice that parents can make than deciding who will raise their children if something were to transpire that prevented them from doing so themselves. Most people would prefer to control how their assets are distributed at the time of death rather than leave the decision to the courts. By way of comparison, how could the decision of who raises your children be of any less import? DON’T leave the choice to someone else. Plan well and plan in advance. With so much going into the decision, the hardest part is deciding who that guardian(s) should be, and that’s the focus of today’s article.

 

THINK LIFESTYLE

 

When choosing a potential guardian for your children, one of the themes that should guide your decision is lifestyle. When I refer to lifestyle, I’m not talking about making sure your child is raised in the lap of luxury with your rich cousin who owns a bank. I’m talking something much more fundamental than that – choose someone that you trust to love and care for your children in the same manner that you would do if you were around.

 

There is no question that this decision will be guided by your own preferences and experiences. Recognition is the key, however. Parents need to recognize that one choice isn’t necessarily better than another, but each choice carries with it long term consequences. Just think about. Would you expect that your children’s informative experiences are going to be the same if they are raised by your divorced, workaholic brother as compared to them being raised by your stay-a-home sister and her husband? Of course not.

 

Every person you contemplate as a guardian will have his or her good and bad traits. It’s your job to figure out who strikes the right balance for what your child needs. The decision will (or should) be shaped by the values and philosophies you hold dear. When choosing a potential guardian, just a few things you should think about include: their religious beliefs; their moral values; their educational values; and their societal/political philosophies. All will have a very real and lasting impact on your child’s development, so be sure that the guardian’s values and philosophies are an acceptable match for how you want your child raised.

 

THINK OUTSIDE THE BOX

 

When considering potential candidates for their children’s guardian, one of the questions that clients have often asked is, “Am I limited to choosing a family member?". The answer: absolutely not! Although many turn to brothers, sisters and sometimes even parents as their first choice for guardian, there is nothing to say that trusted friends wouldn’t be an equivalent or even far better selection than a family member. So long as the potential guardians have a real and trusted relationship with a child, I think they are a valid candidate for the duty.

 

THINK PRACTICALLY

 

The simple fact of life is that not every person is a suitable guardian for every child. It’s a case by case decision that I leave to every readers’ discretion, but I’ll take just one situation as an example to illustrate my point. Would you necessarily want your elderly parents to raise your toddler if something should happen to you? Maybe not. Aside from the fact that young children are high energy and require a great deal of patience and stamina to keep up with them (items which older populations are sometimes in shorter supply of), you also have to think long term. Parents want to provide as much support and stability for their children once they pass as possible. Depending on circumstances, it may not be the wisest choice to place a young child with older guardians who are themselves at risk of passing before the child reaches adulthood. It’s a personal choice though, and nothing says that one selection is more appropriate than another. The bottom line is this: when making the decision, you need to think not only about your child’s circumstances (are they older, younger, special needs, etc.), but you need to consider the circumstances of the individuals that you are considering to make sure they are good fits both long and short term. Just a few issues to consider: are they elderly; divorced; close to your family (geographically and emotionally); suffer from addictions; have their own children; and the list goes on and on… All will have an impact on your children, so be sure to think long and hard on your choice.

 

TALK IT OUT

 

Now that you’ve gone through the mental exercise of figuring out who is the best fit for raising your children, what comes next? The obvious answer is reduce it to writing. While correct, that’s only partially right. Yes, you need to consult a professional to ensure that your wishes are reduced to writing to make sure they are given later effect, but even before that’s done, there’s something else you need to do. Talk to the potential guardians! Let them know what you’re thinking and why you’d like to select them. Chances are good that they will be honored to take on the duty, but there’s no guarantee unless you confirm with them first. The last thing you want to do is name someone as a guardian who doesn’t want or isn’t prepared for the responsibility.

 

As with every other aspect of the law, there are, of course, nuances to everything. Consult with a professional to ensure you know your rights, options and obligations going forward. This is your children’s future we’re talking about, so do it right.

WHAT IS A POST-POSSESSION AGREEMENT AND SHOULD I USE ONE?

In the world of residential real estate, it’s not uncommon for a seller to ask a buyer to retain possession of the premises being transferred for a certain period of time following the closing. Although you might ask why a buyer would even consider such a request, sellers typically inquire as to this type of accommodation when faced with some circumstance that beyond their control. Such circumstances usually involve sellers waiting on contingencies of their own to be satisfied, like the completion of a new home build or their own purchase to close.

When faced with a seller asking for post-possession as a component of closing, buyers are confronted with one of a few choices. Depending on your circumstances, the terms of the contract and when the seller has asked for post-possession, the simple reality is that a seller may have no basis to retain possession after the closing. Under such circumstances, the buyer is under absolutely no obligation to allow the seller to stay in the home. The result may seem harsh, especially if the seller is claiming they will be homeless until whatever predicament their facing resolves, but so go the whims of real estate. It's not a buyer's obligation to bend over backwards to accommodate a seller in an unfortunate situation. That said, karma does have a funny way of exacting its revenge, so keep that in mind before disregarding the needs of your seller. You never know when you might be in that same position.

If circumstances allow, the best alternative to avoid headaches and post-possession issues is to simply postpone the closing until the seller has resolved whatever outstanding issue(s) necessitated the post-possession in the first place. So long as its not an unduly burdensome delay that causes you to suffer damages, especially of the financial variety, taking possession of a premises in vacant condition at close is almost always preferable.

When taking vacant possession isn’t possible, the final alternative is to execute a post-possession agreement. These agreements allow a seller to remain in the property for a certain period of time following the close, and they should be finely tailored by counsel to meet your particular circumstances. There are risks associated with allowing someone to remain in the premises after closing, and it is your goal to minimize those risks as much as possible if you decide to allow them to stay.

Some of the unfortunate but very real considerations that you may face if the seller enjoys an extended stay are: what happens if they stay past the agreed upon term and won’t vacate? What happens if they damage the premises while occupying it? What happens if a guest of the seller is injured on the premises while occupying it? Who pays your carrying costs while the seller is occupying it? And what happens if the seller takes or removes something from the premises that they weren’t supposed to when they finally do vacate? At a minimum, post possession agreements should provide for a few basic things to address some of these potentialities.

The first thing I would recommend is that the post possession period be for a short a time as possible. These agreements are usually intended to cover a matter of days, and not really weeks or months. Second, the agreement should contain language affirmatively stating that NO landlord tenant relationship has been established or should be construed by its execution. Third, the agreement should set forth not only a per diem daily amount to be paid to the buyer during the seller’s ongoing occupancy of the premises, but it should require the seller to hold back a set escrow amount to be paid over in case of damage to the property or if the seller stays longer than agreed. Finally, the agreement should require the seller to turn over the premises in broom clean condition at the time he vacates, just as he would have been required to do had they vacated at the time of close. There are certainly other things that you might consider including in the agreement (i.e., seller maintaining insurance coverage during occupancy, etc.), but I would suggest that the above are the bare minimum essentials.

While post possession agreements have their place and are certainly tolerable when circumstances dictate, if you have to use one, at least do so with a full understanding of the potential risks involved. Some deals are inherently more risky than others, so always assess your particular circumstances to determine the advisability of utilizing a post possession agreement.