A Framework for Choosing a Guardian For Your Minor Child(ren)
If you have a minor child (or more than one!) and have not yet named a guardian, this blog post is for you.
The most important planning decision you will make as a parent is choosing the legal guardian for your minor child. In fact, many parents report that they delay making an estate plan because they simply hit a wall when they consider this question. It is painful to imagine someone else raising your children. But failing to pick a guardian means a court will choose one for you—and it may not be the person you think is best. But you already knew that, right? You are just waiting until you can figure out who you would choose before you call an estate planner . . .
Don’t wait. An estate planner can provide helpful guidance as you consider who to designate.
An estate planner can help to untangle the uncertainty that some families feel when deciding whom to designate as guardian. There are many factors to consider when determining who to appoint as your child’s permanent legal guardian. The topics and guiding questions below may be useful to help you gain clarity as you weigh your options.
First, let’s define our terms.
A permanent legal guardian is a person you designate to become the long-term legal guardian of your minor children should anything happen to you. When a child has two legal parents, each parent usually designates the other parent as the child’s permanent legal guardian in their will, along with one or two backups, should something happen to both parents.
A temporary or emergency guardian is a person who lives within 20-30 minutes from you, who could take custody of your child on short notice until either they can be returned to you or the child’s permanent guardian can arrive and be appointed by a judge according to your will. For example, if both parents are injured in a car accident and in the hospital undergoing surgery, an emergency guardian could pick your kids up from school and take care of them until you are well enough to return home.
If you do not have a trust in place, a conservator is a person designated in your will to manage your child’s inheritance until they turn 18.
If you have a trust in place, a trustee is a person you designate to manage your child’s inheritance according to the terms of the trust.
Often, parents choose the same person as permanent guardian and conservator/trustee, but every family is unique and these roles can be effectively assigned to different people. We will discuss factors to consider when choosing a conservator or trustee in a future blog post.
1. Relationships
Most of all, you want someone who will love and care for your child as much as you do. Guardians are often family members, but there is no requirement that they must be. Many parents look for a stable couple and are inclined to appoint co-guardians, but there’s a hitch: marriages do not necessarily last forever. It is prudent to appoint individual guardians: in the case of a married couple, appoint the person you would want your child to remain with should the couple ever split up. If you want your children to have the option of staying with the guardian’s spouse should the guardian die or become incapacitated, your estate planner will be able to draft that into your will. Finally, we all know it takes a village to raise our children; that is why you will want to consider your guardian’s family and community relationships and support, as well as their disposition for supporting your child’s relationships with extended family.
Guiding Questions:
Does your potential guardian have a close and personal relationship with your children?
Do your children have confidence and trust in this person?
What is the existing family situation of the potential guardian? Are you concerned about disputes that might arise between the guardian’s own children and yours? What is the relationship of the guardian’s spouse to your children?
What is the nature of the potential guardian’s relationship with the child’s extended family members?
Is the potential guardian willing to foster and facilitate the child’s ongoing relationships with both sides of the family?
2. Values/Cultural Fit
Values and cultural fit are really important, both so that you can feel comfortable that your children will be raised with the values that are important to you, and so that your children feel connected to the identity they have developed with you. Yet, finding a perfect match is less important than finding someone who knows and respects your values and culture, and who will be willing to foster and celebrate experiences consistent with them for your child. For example, it is less important that a guardian be a member of your religious faith if they are willing to facilitate your child’s involvement with a religious community by taking them to services and making sure they are able to celebrate holidays with their faith community.
Guiding Questions:
What is the parenting and discipline philosophy of the potential guardian?
What are the potential guardian’s personal values, religion, or spiritual philosophy?
Does the potential guardian understand and respect your values, even if they are different from their own?
If the potential guardian’s religion or culture is different from that of your child, would they be willing to foster and celebrate your child’s faith and/or cultural heritage?
3. Logistics
Location, career demands, age, health, and financial means are some of the logistical factors you will need to consider when naming a guardian. Taking on all the needs of a young, grieving child is no small thing, and guardians will require financial resources to both make the adjustment and adequately care for your child over the long term. Life insurance should always be considered as part of the estate planning process, to make sure your child and their guardian do not experience unnecessary financial strain.
Guiding Questions:
Where does the guardian live? Would your child be required to move across the country or abroad to live with this guardian? How would this impact your child?
What is the age and health of the potential guardian? Although grandparents are often in the position to love and support their grandchildren, it is possible their age or health status will be a prohibitive factor in having them serve as guardians.
How do the demands of the potential guardian’s career square with their responsibilities to your child?
Would adding your children to the guardian’s family require the guardian to remodel their home or purchase a new home and/or vehicle?
What is the financial impact upon the potential guardian? Will there be sufficient assets in the estate to allow the guardian to continue their lifestyle and the lifestyle their children are accustomed to?
Guardianship is not a “set it and forget it.”
Everything changes. Your guardian moves to Peru, gets divorced, gets a diagnosis, a jet-setting job, or pregnant with surprise twins. Your children get older, more independent, and more rooted in their school life and community. Like the rest of your estate plan, you should revisit your guardianship designation at least every three years, or after any major life event.
Don’t Wait.
If you have minor children and have not yet designated a guardian, or if you already have a guardianship designation that is no longer right for your child, don’t let uncertainty about who you would appoint keep you from moving forward. Treetown Law is here for you. We will take the time to learn about your unique family dynamics, values, and concerns, and we will partner with you as you come to the best decision for your family.
Contact us to put these critical documents in place today.
