For clients who are parents of minor children, our priority is to design and plan to best meet the needs of such parents and provide added peace of mind. Our experience, both professionally and personally, has afforded us with an increased awareness of the issues facing parents today. As a result, we work with parents and assist them in making the decisions that will carry forward their wishes and legacy, including determining how and when distributions should be made to or for the benefit of a child, instructions to the trustee, saving for college and education, and guidance in choosing guardians.
Why You Should Choose Guardians
Choosing a family or person to care for your children is difficult. For many families, it’s the hardest part of creating an estate plan. It’s not easy to think of anyone else, no matter how loving and wonderful, raising your children. But while it’s difficult enough to think about not being there to raise your children, imagine a court choosing their guardians with no input from you: Your relatives arguing in court over who gets the children, or worse, your relatives agreeing, but not on the people you would have chosen. You can make a tremendous difference in the lives of your children by planning ahead. And you have nothing to lose except a few moments thinking about what you value most in life and the values you would like your children to develop.
Anyone with a child under the age of 18 must consider who would raise that child if they were unable to. Although the worst case scenario — premature death — comes immediately to mind, much more commonly incapacity is the reason guardians are asked to take over. If you and your spouse were unable to care for your children for a time, who would watch over them while you recovered your faculties?
The younger your child, the more important this choice is, because very young children cannot form or express their own preferences about caregivers. Yet young children are not the only ones who benefit from carefully chosen guardians. As we all know, a parent’s job doesn’t end when a child reaches 18. By talking to your older children about your choice of guardian, you can encourage a lifelong bond with a caring family.
Although the decision-making process can be hard, the actual process of nominating a guardian is a straightforward aspect of any family’s estate plan. It can be as simple or as detailed as you want: You can simply name the guardian who would act if both you and your spouse were unable to, or you can provide detailed guidance about the sort of life experiences and family environment you would like for them.
How do you choose?
Step One: Make a list of potential guardians
Make a long list of everyone you know who might possibly be a good guardian. Initially, just ask yourself one question: “Would they provide a better home for my children than the foster care system?” If the answer is yes, add them to the list. If the answer is no, it’s worthwhile to note that too, because you may want to express in your will that under no circumstances should those people be made the guardians of your children. Your list might be very long, but it should have at least three or four people or couples before you move on to the next step.
Remember to think beyond the obvious choices. You don’t need to limit your list to close family members. While siblings and parents can be excellent choices, consider aunts, uncles, nieces, nephews, and business partners. Friends can make excellent choices. Consider friends from your child’s play-groups, church-groups, even teachers or child care providers with whom you and your children have a special relationship. They may share similar philosophies about child rearing.
Don’t eliminate anyone from consideration for financial reasons unless they lack the most basic money management skills. You also don’t want to rule people out because they don’t have a big enough home. Sufficient life insurance or other assets in a well-drafted trust can ensure your children’s financial well being. You can even instruct the trustee to provide funds for your chosen guardian to build an addition to their home or move to a larger home to accommodate your children.
Step Two: Make a list of your values
Choose a few factors that are most important to you:
- Parenting philosophy or style
- Presence of children in the home already
- Interest in and relationships with your children
- Ability to meet the physical demands of child care
- Presence of enough “free” time to raise children
- Religious beliefs
- Social and moral values
- Marital or family status
- Potential conflicts of interest with your children
- Willingness to serve
- Willingness to adopt your children
- Educational values
- Ways of showing affection
Step Three: Remember to look for a good, but not perfect, fit
Most likely, no one on your list will seem perfect-that is, JUST like you. But if you truly consider what matters to you most, you will probably be able to make some reasonable choices. Remember that some factors can be influenced by you and others cannot. Moral values cannot be changed, but if you care deeply about having a stay-at-home parent, a prospective guardian might be willing to come home to raise your child if you make it possible through a well structured estate plan.
Step Four: Match potential guardians to your priorities
Use the factors you chose in step two to narrow your list of candidates to three or four. In the end, you’ll have to trust your instincts to narrow this list down to the people you want to be first, second, etc. If you choose a couple, make sure to consider what you want to happen if the couple divorces or, because of death or incapacity, only one can serve. Do you want either one to be guardian, or just one of them? Or would you prefer to just move to the next person(s) on the list?
It’s essential that you and your spouse agree. While you can each name different guardians, this is most likely to create discord later among the guardians, trustees, and possibly your children. We encourage you to make this decision on your own, but if all your communication and empathy skills fail you, you won’t be the first, and a good counseling-based estate planning attorney can help you through the process.
Regardless of which spouse’s family or friends appear more frequently on your final list, it’s important to keep both families involved. One way to do that is to name members of one family as guardians to care for the children, and members of the other family as trustees, to manage the assets for the children. Another is to name members of both families to a Guardianship Panel. If there is a likely to be conflict between the two families, be sure to share this with your attorney so that your guardianship provisions can be customized to encourage the families to keep the lines of communication open.
Step Five: Consider Temporary Guardians
You’ve already made most of the tough decisions, so this one should be relatively easy: Consider selecting a temporary guardian who may be appointed if you both become temporarily unable to care for your children (in a car accident, for example). If your choice for a permanent guardian lives a considerable distance away, choose someone close by to serve as temporary guardian. If you’re temporarily disabled, you’ll want your children close by. And you won’t want their lives unnecessarily disrupted by moving them to a new town or school.
Step Six: Stay Positive
For some parents, making this decision quickly is the best way to achieve peace of mind. For others, Choosing Your Child’s Guardian can be the start of a more intensive relationship building process. An attorney who understands where you and your spouse fall on the spectrum can counsel you appropriately.
Although choosing and nominating a guardian can be an intensive, life-changing process, it can also be the easiest legal issue you’ll ever face. The nomination of guardianship itself can be a very brief document or just a paragraph in a will or trust. And it can be easily revised as your children grow up and your family and friends change. Nominating guardians need not be a long and drawn out process. However you complete the process, you will find a new level of peace of mind.