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Planning For Parents: Choosing a Guardian


Choosing a GuardianIf marriage can complicate your estate plan, children can completely change the focus of your planning. Your children are truly your most valuable assets, and usually take priority over everything else. Minor children add many wrinkles into the estate planning process.

One of the most perplexing questions facing parents of minor children is: Who will care for my children should I pass away or become incapacitated? This is a very difficult topic to think about. You not only need to consider your own mortality, but that of your spouse, as well as who will raise your children.

The nomination of Guardians is an important part of your estate plan. You can be as basic or as detailed as you want. Some couples choose just to name a Guardian, and others not only name a Guardian, but also develop comprehensive plans for how their children are to be raised. Many estate planners will draft language into your instruments which provide for Guardians if both parents are deceased, but what about the situation where both parents (or the sole parent) are incapacitated for some period of time? We think that this possibility should be planned for as well.

People often ask us how they should approach choosing a Guardian. There is no magic answer, but we recommend that you consider many different issues. Start with a long list of possible choices. Make a list of ALL the people you think could be good Guardians. Don’t limit yourself. Think about your siblings, parents, and other extended family members. Friends can make terrific Guardians as well.

When selecting a Guardian to raise your minor children, we recommend that parents focus on “the love.” Parents should consider whether each couple or person on your list would truly love your children if appointed to be their Guardian. Ask yourself, do these people have the capacity to love my children like I do? After all, you want the Guardians to treat your children as you would. Consider their values and philosophies. The people on your list most likely will share your values and philosophies on life, child rearing, religion and education.

Don't worry about finances or the size of someone’s house. Don’t eliminate a person because you think they don’t have a large enough net worth. You can provide funds for your children through proper estate planning. Some folks utilize life insurance to create an instant estate to care for minor children that they leave behind. You can create detailed instructions as to how your Trustee is to compensate the Guardian, to ensure they will always have adequate funds to care for your children and raise them in the appropriate environment. We have had some clients create plans that would provide the money needed to add an addition to a Guardian’s house. In other cases, the decedent’s home is given to the Guardian so that the children can stay in their own home, and go to the same schools.

Parents should consider some of the practical factors associated with Guardianship as well. How would raising your children fit into the Guardian’s lifestyle? Do they have the necessary health and stamina to raise your kids? Do the potential Guardians have other children? If so, do they get along with your children? Do they have the same moral foundation as you? Will your proposed Guardians raise your children in the same religious environment as you would? These are important issues that need to be considered when choosing Guardians.

Finally, it is recommended that after you make your choice you write down your reasons. We have advised our clients to explain their decisions regarding Guardianship choices in writing. This provides great evidence as to your intent, which can be extremely helpful if your choice for Guardian is challenged. We are often asked if people should tell the folks they did not chose why they did not choose them. We usually advise them not to do this. Our reasoning is that you may change your mind at a later date and this can prove to be a very awkward situation. We also recommend that you have a back-up Guardian in case your first choice is unable to serve. When selecting a married couple to serve as Guardians you should ask yourself: If this couple were to divorce, would your plan still work?

Communication is the key. Talk with everyone involved. If your children are of an appropriate age, talk to them about this. Be sure to discuss your choice with the people you'd like to select as Guardians. Make sure they are willing to take on this huge responsibility. This is critical, as you want to be sure the guardian you decide on is ready, willing and able to perform this important task.

Our best advice would be to look for a good choice, not necessarily the perfect choice. The perfect choice is an unattainable goal. You are the perfect choice, and you are really looking for a “runner up” here. Trust your instincts.


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