One of the toughest decisions to make with estate planning is who will raise your children if you are deceased. Children need someone to raise them—a guardian—until they are 18. This blog will focus on guardianship for non-disabled children.
I give the following advice to my clients on how to pick a guardian.
1. Keep in mind that no one will parent your children as well as you do.
2. Many people consider naming a family member as guardian. Here are some things to consider with family members.
a. Will the children need to move to another city or state?
b. How many children does your family member already have?
c. How close is the relationship between the guardian and your children?
d. Does the family member have children?
e. Do you and the guardian share the same values?
f. How old is your family member? How old will the family member be when your children turn 18?
3. Many people consider naming friends as guardians.
Here are some things to consider with friends.
a. Does the friend know your extended family?
b. Will the friend keep up relationships between your children and your extended family?
c. How upset will family members be that you chose a friend over a relative?
4. General considerations for picking a guardian
a. What if your named guardian divorces before serving as guardian?
b. What if your named guardian divorces after starting to serve as guardian?
c. Do you want your children raised only in a 2 parent home?
d. Do you want your named guardian to move into your home to care for your children?
Once you decide who should be guardian, you put that information into a Last Will.
In addition, in a separate document (hand written or computer generated), I would put the following information about each of your children:
The name and phone number for the pediatrician
The names and phone numbers for any specialists your child sees
Your child’s extracurricular activities–what are they, when are they, do you have carpools
Religious education and ceremonies that are important to you
The names of your child’s friends
Adults who your child likes
Your child’s teacher, school, principal–how is the school year going
Your child’s immunization record
Your child’s favorite foods–hated foods; food allergies and sensitivities
Your child’s medicines and vitamins
Your child’s academic weaknesses and strengths
Your child’s favorite things to do; hated things to do
Favorite toys, blankets, bedtime rituals
Don’t assume others know this information about your children.
Here are 2 of the most common complications with naming people to be guardians.
1. Let’s say Miranda is divorced from her children’s father, Max. Miranda thinks Max is the scum of the earth. He has a criminal record, was abusive to Miranda, and has been a drug addict for several years. There is no way he should be guardian for Miranda’s children. HERE IS THE KICKER—HE HAS RIGHTS TO THE KIDS. What can Miranda do about that?
a. She can say in her Last Will the reasons why the father would be a terrible choice as guardian.
b. She can say in the Last Will who should be guardian and state reasons for her choice.
c. There is no guarantee that Miranda’s choice of guardian will be able to serve as guardian. However, by putting all of this information in a Last Will, she is giving her chosen guardian the best chance of success.
2. Chase and Sarah name Chase’s sister, Molly, as guardian for their 2 children. They know that Sarah’s parents will be very, very unhappy that they are not named as guardians. What should Chase and Sarah do?
a. If Chase and Sarah name Molly, then Molly will almost definitely be the guardian. The only way Molly will not be the guardian is if Sarah’s parents have actual living proof that Molly would be a danger to Chase and Sarah’s children. Grandparents do not trump aunts or any one else for that matter, when it comes to who should be guardian.
b. Chase and Sarah should put their reasons why they want Molly as guardian, in their Last Wills. They should not do a dissertation on why Sarah’s parents are not a good choice, but instead, why Molly is a good choice. Again, the goal is for Molly to successfully become the guardian.