Choosing Guardians
By Livia DeMarchis, Esq.
My husband and I have young children, and it is difficult to contemplate them being raised by anyone besides the two of us. That said, if something were to happen to both of us, I take comfort in the fact that soon after becoming parents, we put in place an estate plan that names a series of individuals whom we’ve chosen to take over as guardian of our minor children. This article reviews the role of guardians for minor children and discusses some of the factors parents should consider in naming guardians through their estate plan.
Choosing guardians can be an emotional topic, and parents in the same couple sometimes have very different ideas about who might be best suited for the role. Unfortunately, failing to address the subject in an estate plan means that, in the event you pass while your children are still minors, they will be in guardianship limbo for a time, and a guardian will ultimately be chosen for them through a court proceeding. If you have minor children, it is important to be proactive about naming guardians in your estate plan so that making this important decision does not fall to strangers through the court system.
In addition, by naming guardians and discussing the issue among family as part of your estate planning process, you are helping to avoid potential disputes among family members about who should take on this critical role. Parents can name their choice of guardian(s) and successor guardian(s) in a Last Will and Testament. The person or people named will ultimately need to be appointed by the court before their role is official, but identifying them in advance in estate planning documents provides critical clarity at a turbulent time and smooths the path forward for everyone. As long as a parent still has capacity, they can always change their Last Will and Testament to update the guardian line-up as circumstances change.
The primary duties of a custodial guardian are to provide a child with a nurturing home, assist the child with decision-making, and support them in ways appropriate to their age and abilities so that they grow into an independent and responsible person. Among other things, a guardian will make decisions about a child’s education and their physical and mental health. If the minor owns any property in their own name, then the guardian may also have financial guardianship responsibilities related to the minor’s property. In general, though, where parents structure their estate plans to include an estate planning trust, their minor children do not inherit financial assets outright, and it is the successor trustee named in the estate planning trust who manages financial assets held in continuing trust for the minor’s benefit. In these situations, it is important that the guardian and the trustee can build a good working relationship to communicate and coordinate on the minor’s behalf.
In considering whom to name as guardian and successor guardian, there are a number of things to take into account:
1 Name Back-Ups. While it can sometimes be tricky to come up with even one individual to whom you would entrust your children, ideally, you should select two or more who can be named in succession. Naming successor guardians as back-ups helps provide security in the event your first or second choices aren’t able to serve. Especially if you are choosing an older individual, such as your own parent, as the first guardian in line, it is important to name back-ups, and you can let your first-choice guardian know that they can decline in favor of someone younger if they no longer feel able to take on the responsibility.
2 Parenting Style and Skills. Whoever serves as guardian will need to be comfortable caring for children 24/7, as a parent would. Think about whether your chosen individual has kids of his or her own and understands the challenges and rewards of parenting. Consider whether their parenting philosophies and practices are in line with yours. If you name someone who has children of their own, also think carefully about whether your children will fit in with the other children in the family. Make sure that you think your chosen guardian can handle both your children and their own.
3 Living Situation and Location. When someone becomes guardian, the children under their care typically move into the guardian’s home. If you are considering a guardian who lives a long distance away, think about how a significant move might affect your children. Consider whether the guardian lives in a neighborhood with good schools, and whether there would be a significant change in culture in the new location. Does your chosen guardian move frequently, or do they have a stable living arrangement? Can their home accommodate more children? If not, do you want to leave them any assets to increase the size of their home to accommodate your children?
4 Stable Job & Financial Situation. Hopefully, parents are able to leave sufficient assets in their estate plan to provide some financial security for their minor children, ideally through a continuing trust that is funded with the parents’ savings, life insurance proceeds, etc. However, it is important to consider a potential guardian’s job situation and financial stability, because raising children is expensive. Serving as guardian will likely raise the guardian’s living costs, and parents don’t want to impose a financial burden on someone who is not able to handle it. Parents should also consider taking out term life insurance, which can be a good solution to this issue.
5 Age & Stage of Life. A potential guardian’s age and stage in life is critical to consider. Younger candidates may not be in a stable enough place to take on the responsibility of children. They may be more focused on their own education and career advancement. Older guardians may not have the requisite health or energy to be a good choice. It’s particularly important to think about health factors that could limit a potential guardian’s life expectancy or ability to communicate with and understand the needs of your children. People often choose their own parents as guardians. While this may make sense, remember that your parents have a shorter life expectancy than someone your own age. Consider how old your parents will be when your children are teenagers and whether they will still be up to the challenges of parenting.
6 Character and Values. Choosing a guardian who holds the same morals and/or religious beliefs as you can be an important consideration. Parents may feel strongly that their child’s guardian should continue to encourage participation in the family’s chosen religion. While godparents are not automatically recognized as legal guardians, it is certainly acceptable to name them as legal guardians in estate planning documents. It should be noted that certain traits typically preclude a named guardian from being appointed by the court. For example, the court won’t give the position to someone with a documented history of drug or alcohol abuse or to someone with a criminal record.
7 Appointment of individuals vs. couples. Parents often like the idea of naming both individuals in a married couple as co-guardians. If you want to do this, think about where your child would go in the event the couple divorces. Perhaps it is best to name only the individual from the couple with whom you have the closest relationship so that it is clear who remains guardian if the couple separates.
8 Get your child’s input. If a child is mature enough, parents can consider asking them who they would prefer to have as a guardian. If a minor is a teenager, the court will likely ask them for their input before formally appointing a guardian in any event.
Finally, I note that whomever parents choose to name as guardian, it is extremely important to communicate with them ahead of time to let them know about the decision and to make sure they are comfortable with it. It can also be very helpful for parents to leave the guardian some written details, included in a separate letter or email, outlining their wishes about how their children will be raised. For example, parents can detail whether there are certain schools the children should attend, certain religious values that they hope will be instilled, certain sports or other activities that they hope can be promoted, certain people whom they wish (or do not wish) to be included in raising the children. Putting these preferences down in writing isn’t a guarantee that they will be followed, but it can provide a helpful roadmap.
Even while you hope and expect that your careful planning will never be needed, you may find, as I did, that making and documenting your choices for your child’s guardian will add to your peace of mind.