Choosing A Guardian and Conservator for Your Minor or Disabled Children

I spoke earlier this week to a group on Estate Planning for families with special needs children.  One important issue in planning for families with minor children or adult disabled children is choosing a guardian and conservator.  A guardian is the person responsible for caring for the person and the conservator is the person responsible for the person’s assets.  While they often are the same person, they need not be.  As a parent, special weight will be given to the person(s) you nominate to serve as guardian and conservator.   For an adult disabled child it is important to understand that upon reaching the age of majority (18 in many states) they are presumed to be capable of acting for themselves.  Therefore, you may need to apply to serve as guardian and conservator when they reach the age of majority in your state if the situation warrants.Here are some things to consider when determining who to nominate as guardian and conservator:1.  Look Beyond the Obvious.  Make a list of all the people you know who you would trust to take care of your children.   Don’t limit your list to just immediate family.  While siblings and parents can be excellent choices, consider also extended family members and friends.2.  Clear the Financial Hurdle.  Don’t eliminate good candidates from consideration because you don’t think they have the financial wherewithal.  You can take care of the finances with what you leave - that's what life insurance is for.  You can even instruct your trustee or personal representative to provide funds for your chosen guardian to build an addition to their home or move to a larger home to accommodate your children.3.  Love.  Consider whether each couple or person on your list would truly love your children if appointed their guardian.4.  Values and Philosophies.  Which people on your list most closely share your values and philosophies with respect to your: religious beliefs; moral values; child-rearing philosophy; educational values; and social values.5.  Personality Counts.  Consider whether each of your candidates has the personality traits that would work for your children.  Are they loving?  Are they patient? How affectionate are they?  Are they mature?6.  Consider the Practical.  How would raising children or caring for a disabled child fit into their lifestyle?  If older, do they have the necessary health and stamina?  Do they have other children?  How would your children get along with theirs?  How close do they live to other important people in your children’s lives?  Do they have the ability to manage assets properly?  If caring for a disabled child are they willing to learn and seek advice?7.  What about Death or Divorce?  If you name a couple, what happens in the event of divorce or if one person died - would you be comfortable with either of them acting as the sole guardian?  If not, you need to specify what you would want to happen.8.  Location, Location, Location.  Losing their parents will be a horrible event in the lives of your children.  Consider carefully whether you want the additional disruption of moving them to a new town and school.  Minimizing the major disruptions will be very important to your child’s adjustment to their new circumstance.9.  Talk with the People Involved.  If your children are old enough, talk with them to get their input as well.  Be sure to confer with the people you'd like to choose, to ensure they're willing to be chosen and would feel comfortable acting as guardians.10.  Nobody’s Perfect.  Most likely, no one on your list will seem “perfect” – that is, just like you.  But if you consider what matters to you most, you will be able to make a good choice.  In the end, trust your instincts.  If one couple or person meets all of your criteria, but doesn’t feel right, don’t choose them.  By the same token, if someone feels much more right than any of the others on your list, there’s probably a good reason for it.The nomination of a guardian and conservator for minor or disabled children is a vital aspect of any family’s estate plan.  You can provide detailed guidance about your children and the sort of experiences and family environment you would like for them. Choosing requires difficult decisions, but don’t let that stop you from putting a plan in place now.  It is better to move forward now and make the best decision you can, rather than delay and lose your opportunity.