Choosing a Guardian for Your Children – One of the Most Difficult Estate Planning Decisions

I’ve been told by several “younger” couples that the issue that prevented them from having estate planning documents prepared was consternation over whom to name as guardian of their minor children. This is one of the most difficult estate planning decisions a couple will have to address, especially when their children are young. Although nothing can make the decision easier, I hope this article will give you some guidelines to follow in thinking through this issue.

Court appointment of a guardian for your minor children will only be necessary if you and your children’s other parent are both deceased. The guardian will essentially step into your shoes and be charged with parenting your children. The guardian will make decisions about where your children should live, where they should go to school, what activities they will participate in, what medications they will take, and who they will socialize with.

Given the intimate nature of these decisions, you should choose a guardian who knows you and your children well. Ideally, you should trust that your guardian will make the same types of decisions for your children that you would. Although we often think of a family member as the best option for a guardian because he or she is related to your children and likely interacts with them frequently, you must also be comfortable that the family member will make decisions for your children that are consistent with the decisions you would make yourself. If you do not have a family member who meets this description, a better option may be a close friend who has a parenting style similar to yours.

You should also consider the type of relationship your children have with this person. Is it a warm relationship? Are your children comfortable sharing information with this person? Do you like how the potential guardian communicates with your children? There are no right or wrong answers to these questions. If a guardian is required, that person will be stepping into your children’s lives in this new role at a time when they have just lost one or both of their parents. It would be better if your children knew the guardian and had an ongoing relationship with him or her to prevent them from having to build a new relationship at such a difficult time.

Given the immense responsibility associated with serving as a guardian, one key question is whether the potential guardian has agreed to serve in this role. If you pass away while one or more of your children are still minors, it will of course change their lives—but it will also change the guardian’s life. The guardian will essentially become a parent overnight. You should talk with the person or persons you name in your estate planning documents about the role of guardian and whether he or she is willing to serve.

Many of our clients express great anxiety about the geographic distance between them and their preferred nominee for guardian, fearing that their children would have to move to the guardian’s location, compounding the disruption in their lives. This is also a topic that warrants discussion with the candidates for guardian.  Would they be willing to move to the children? Your estate plan can contemplate the burden this imposes on the guardian by allocating resources to offset the cost and even compensating the guardian for the sacrifice. Special provisions can be made to call for your home to be retained and occupied by the guardian and children until the children reach the age of majority.

When it comes to resources, you should also be aware that the guardian does not have to be responsible for your children’s inheritance. Often the person who is the best candidate to rear the children is not the best candidate to manage finances. Your estate plan can be designed so that your children’s inheritance is managed through a trust, the trustee of that trust being someone other than the guardian. That trustee can make distributions to the guardian to support the rearing of the children while retaining trustee control over important functions such as investment management.

Finally, once you have made the very difficult decision of selecting a candidate for guardian, you should do it again. It’s important to consider who might serve as guardian if your first choice cannot serve or cannot continue to serve until your children are of age. In addition, if your first choice for guardian is married, you need to consider what you want to happen if the guardian dies or gets divorced. If you are naming a couple as co-guardians, do you have a preference for which spouse continues to have custody of your children in the event of a divorce? Similarly, if you are naming an individual who is married, do you want your children to remain with that person’s spouse if that person dies?

The complexities of this decision make it a very difficult one. However, those complexities increase the importance of making a decision. If you do not execute a will nominating a guardian, the selection of a guardian will be left to the first person who petitions the court, over which you will have no control. The nomination of a guardian for minor children is the principal reason young couples should make wills.

If these decisions cause you anxiety, you are not alone. We would be happy to talk through these issues with you in person and help you create an estate plan that is consistent with your vision for how you want your children to be raised.