We understand that establishing guardianship for your child may not be at the top of your list of things to think about prior to beginning a surrogacy journey. Legal topics like guardianship can often seem overwhelming or confusing. At Circle, we have a full legal staff that are here to help!
What is a Guardian?
A guardian is someone you designate to step in and assume a legal roll in your place, in the event that both of your child’s parents pass away before the child’s age of majority, which in most states is the age of 18.
While waiting for your surrogate match, intended parents should start the conversation about who the guardians of their child(ren) would be, if they both pass away during their surrogacy process, prior to the birth of their child, or during their child’s life. Legal clearance for a transfer cannot be sent to the IVF Clinic, without intended parents’ having either a will or a legal document providing guardianship for a child. Your Circle attorney will need a copy of your wills or the legal document providing guardianship for a child. Legal clearance is what allows your carrier to begin medications and to be scheduled for and to have a transfer. Your IVF Clinic will not allow your carrier to begin medications nor schedule her for a transfer, without legal clearance.
Why Do We Need to Formalize It?
Parents may have a verbal agreement with the person that they have chosen to be the guardian of their child, that if they are to pass away before their child(ren) are adults, he/she will assume their roll and parent them. While it is great to have that conversation with the person(s) that you have chosen to be the guardian of your child(ren), the conversation itself may not be sufficient on its own for guardianship to be established if applicable. For this reason, we recommend that you consider guardianship now and include such a provision in your will in the event both your child’s parents pass away prior to the child reaching the age of majority. This will allow a court of jurisdiction to follow your wishes and allow the guardian(s) that you have selected to legally parent your child without having lengthy court intervention.
When you execute a will that includes guardianship language, you can also name the order of successor guardians for your child(ren). This gives the courts options in case your first choice of guardian is unable to take on the responsibility, if and when the need arises. This also gives you the opportunity to ensure that your child(ren) is properly taken care of under all circumstances.
Considerations to Keep In mind When Choosing a Guardian
Choosing someone to raise your child is a difficult topic to think about. You should think about what values are important to you and what you would like to instill on your child. Is education important? Staying connected to your extended family? Religious beliefs? These are just some areas that many parents think of when they are selecting their guardians for their child(ren). Many parents chose a guardian with similar parenting styles, values, and beliefs as they have, for consistency for their child(ren).
Another important consideration is the person’s financial ability and stability. You should choose someone who is financially able and stable enough to be able to take on the responsibility of another child in their household. With a properly drafted estate plan, you can also leave your estate to your child in trust, which the guardian can then utilize to raise your child the way you would.
A very important consideration is health and age of a guardian. You want to ensure that the guardian selected has good health and will be able to raise your child. It may not be most appropriate to select someone, if they are in their 70s, for example. You will want to select someone who is healthy and active enough to be able to raise your child. Stability is key, as you do not want to put your child in an unstable household or having to go through the loss of a guardian.
Making Guardianship Legal
Once you have considered who your guardians should be and the guardians selected confirm they are in agreement with the request and physically and mentally are able to do so, your next step is to contact an attorney licensed in the state where you live in order to discuss preparing the necessary legal documents to name the guardians you have selected and ensure your child’s future is safe, sound, and secure. We recommend drafting a letter to the guardians which discusses your values, beliefs, what you wish for your child, and your parenting style. This is to ensure that your guardians know what is important to you and follow your values, wants, and beliefs when raising your child(ren).
Sample Guardianship Language
Below is sample guardianship language which can be utilized in an estate plan drafted by your attorney:
I appoint my spouse, John Jacobs, to be the primary Guardian of any minor children I may have.
If my spouse, John Jacobs, cannot act, or is unwilling to act, I appoint, in the order named, the following successor Guardians:
First, Amanda Adams of Boston, Massachusetts
Second, Colleen Jacobs of Boston, Massachusetts
To the extent permitted by law, I request that my appointed guardian(s) not be required to furnish sureties on any bond required by the court.
Circle Surrogacy has attorneys licensed in California, Massachusetts, New Hampshire, New Jersey, and New York, who can draft your estate plan for you. We also work closely with other attorneys throughout the country who can help facilitate establishing your estate plan. We recommend that you work with an attorney licensed in your state of residency or home country (if international) to ensure that the provisions and documents themselves will be recognized in an applicable court of law. If you are interested in setting up a consultation with one of our Circle attorneys, or have any questions, please email us!