Naming Guardians for Minor Children
For parents of minor children, few estate planning decisions are more important than choosing guardians. While it’s difficult to imagine someone else raising your children, designating guardians in your will ensures that if the unthinkable happens, your children will be cared for by people you trust rather than by someone a court appoints.
What Is a Guardian?
A guardian is a person appointed to care for a minor child when the parents cannot. There are actually two types of guardianship: guardian of the person, who makes day-to-day decisions about the child’s care, education, and upbringing, and guardian of the estate, who manages the child’s financial assets. You can name the same person for both roles or different people, depending on what makes sense for your family.
Why Naming Guardians Matters
Without a will that names guardians, the court will decide who raises your children if both parents die or become incapacitated. While courts consider the best interests of the child, the judge doesn’t know your family dynamics, values, or wishes like you do. The court might appoint someone you wouldn’t have chosen, and family disputes over guardianship can be costly, time-consuming, and emotionally devastating for everyone involved, especially the children.
By naming guardians in your will, you maintain control over this crucial decision and provide clear direction that courts generally honor absent compelling reasons to deviate from your wishes.
Factors to Consider When Choosing Guardians
Selecting guardians requires careful thought about numerous factors, including:
- parenting philosophy and values
- stability and reliability
- age and health
- ability and willingness to serve
- existing relationship with your children
- family situation including whether they have their own children
You should also think about practical matters such as:
- geographic location (would your children need to move and change schools?)
- financial stability (can they afford to raise additional children?)
- living situation lifestyle compatibility (do their daily routines and priorities align with what you want for your children?)
For many parents, religious and cultural considerations are also important. You might prefer guardians who will raise your children in your faith tradition or who share your cultural background.
Naming Co-Guardians vs. Individual Guardians
Some parents choose to name a married couple as co-guardians, while others name an individual. Both approaches have merits. You might specify in your will what should happen if the married couple divorces, such as indicating which spouse should continue as guardian.
Splitting Responsibilities: Guardian of Person vs. Estate
While many parents name the same person as both guardian of the person and guardian of the estate, you might have good reasons to split these roles. For example, your sister might be wonderful with children but not financially savvy, while your brother is a financial professional but not as hands-on with parenting.
Separating these roles creates checks and balances but can also create conflict if the guardians disagree. If you choose this approach, select individuals who can work together cooperatively and communicate clearly about the child’s needs.
Naming Alternate Guardians
Life is unpredictable. The person you name as guardian might be unable or unwilling to serve when the time comes due to their own health issues, changes in circumstances, or the passage of time. It can be helpful to name at least one or two alternate guardians to provide backup options.
Review and update your guardian designations periodically, especially as your children grow and as your potential guardians’ circumstances change.
Considerations for Special Needs Children
If you have a child with special needs, guardianship planning becomes even more critical. You’ll need someone who understands your child’s needs, is willing to coordinate medical care and therapies, can work with schools and service providers, and will advocate for your child’s best interests.
In some cases, a special needs trust can be set up to provide for your child financially without jeopardizing their eligibility for government benefits.
When Guardianship Designations Take Effect
The guardians you name in your will only become responsible for your children if both parents die while the children are still minors. Your named guardian doesn’t automatically assume responsibility upon your death. They must petition the court, which will typically appoint your designated guardian unless there’s a compelling reason not to. This process involves a court hearing where the judge confirms the appointment.
Updating Your Guardian Designations
Life changes, and so might your guardian choices. Review your designations after major life events such as the birth of additional children, divorce or remarriage, changes in your potential guardians’ circumstances, your children getting older and their needs changing, or relocation (yours or your potential guardians’).
Conclusion
Many parents delay creating wills because choosing guardians feels overwhelming. However, making no choice at all means leaving this crucial decision to the courts. Even an imperfect choice that you revisit and update over time can be better than no designation at all. Working with an Estate Planning Attorney can help you identify which estate planning tools work best for your situation.
DISCLAIMER: This blog post is for general informational/educational purposes only and does not constitute legal advice. Reading this post does not create an attorney-client relationship. Every situation is different, and you should consult with a qualified attorney about your particular circumstances. For the full disclaimer, click here.
