It’s never comfortable to openly acknowledge this, but family situations these days can be a bit tricky. You’d like to be able to count on everyone to “do the right thing” with regard to your children but unfortunately, in the absence of a will, any family member who wants custody of your minor children can apply to the court for a custody order. What’s even scarier is that that “custody” could also entail control over monies that you’ve left for your children’s futures. The court will try to consider the children’s best interests when assigning guardianship; however, it may decide to appoint someone who may not have been your first choice.

Avoid this possibility by designating someone whom you would want to act as the Guardian of your minor children in your Will. This appointment will still need to be validated at a court hearing after you die; however, the fact that you have designated someone should hold sufficient weight in the court’s eyes and the court will likely fulfill your custody wishes as outlined in your will.

…And a reason to have a “Living Will”

A “Power of Attorney for Personal Care”, sometimes also referred to as a Living Will, lets you outline what you want to happen if you become ill and cannot communicate your wishes about your medical treatment. This document becomes effective only after you have been assessed as being mentally incapacitated. The importance of having this document in place is that it allows you to have some control over your personal choices. Should you become mentally incapacitated and not have this form of Power of Attorney in place, your family members would have to apply to the courts to be appointed as the attorneys—this could be financially onerous and time consuming. Not having a Living Will also opens up the possibility of a court battle within the family as to who should be appointed—and wouldn’t you rather know who is making decisions for you?