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Chapter 2- Emergency Guardians to Avoid Foster Care

Naming guardians in your will is just the beginning when it comes to protecting your children.  It serves the purpose of making sure that your kids will be raised by the people you choose if you’re not around.  But who would look after your children in an emergency?

Here is the scenario that none of us want to think about: you’re out for dinner with your spouse or partner and the kids are at home with a babysitter.  Tragically you end up in a car accident after you leave the restaurant and you never make it home.

The babysitter will call your cell phone, but won’t be able to reach you.  At some point, the police will show up at the house.  They will have to decide who should look after your children.  The babysitter may request that the children be left with her until she can figure out who should take care of them. 

The police will not leave your children with a babysitter who has no authority to stay with them.   Nor will the police rummage through your house to see if you have nominated guardians in a will.  They will have no choice but to arrange for the children to be taken into the care of Child Protection Services until they can figure out who should be looking after the children in the long term.  This will involve the children being placed in the foster care system, temporarily.

But what does temporarily mean?  If you had nominated guardians in a will, the will is found quickly and the guardians live close by, the period of time that the children spend in foster care could be very short.

If you didn’t nominate guardians in a will, the court will need to appoint permanent guardians for the children before they leave the foster care system.  If your children’s permanent guardians are based overseas, clearly there will be a time lag before they are able to enter the United States.  Depending on which country they are from, they may need to obtain a visa.  This would clearly cause a delay.

Another issue that would cause a delay is if you had not nominated guardians in a will and more than one person or couple steps forward to be guardians of your children.  A court would have to adjudicate that dispute; meanwhile the children potentially are in foster care.

No parent would want their children to be placed in foster care, even for a second, especially at a time when they have just lost their parents. 

So what is the answer?

Kids Protection Planning

What this exposes is a serious gap in the planning that has traditionally been done for parents of minor children.  There has always been a focus on nominating long term guardians, without giving adequate consideration to what happens in a short term emergency situation.

Kids Protection Planning® is the solution.  This begins with helping you to identify people that you know and trust who could step in in an emergency.  Who lives within say 30 or 40 miles and could look after your children if the babysitter isn’t able to reach you?

Once we’ve identified those people, we create short term guardian nomination forms for them.  These forms give them the authority to stay with the children until the authorities can figure out who the long term guardians should be.  Your short term guardians will be able to wave those forms at the police or CPS to show that they have the authority temporarily to stay with the children.

We also provide you with instructions to babysitters and other care givers so that they know that if they’re unable to reach you, they should contact your short term guardians and make sure that the kids are safe before contacting the police.

Alongside the other components of the Kids Protection Plan®, these measures are designed to ensure that your children are never taken into the care of strangers, even for a second.

About Daniel Weiner

Daniel Weiner is a US and UK licensed attorney, based in San Diego, who provides trust administration and estate planning services to families and individuals across California. Dan guides his clients through the often confusing maze of financial and legal decisions to create plans that ensure the well-being of their families and the accomplishment of cherished family goals.


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