Choosing a Guardian for Minor Children

THE COUNSELOR

Volume 2 • Issue 4 • April 2012

The Counselor is a monthly newsletter of Hallock & Hallock dedicated to providing useful information on estate planning, business succession planning and charitable planning issues. This month's issue will discuss choosing a guardian for minor children. If you are interested in learning more about the ideas and processes discussed in this newsletter, please contact us for an initial consultation.


Planning for minor children can be so overwhelming to some people that it prevents them from planning at all. This is especially true when it comes to choosing a guardian. The result of not planning, however, can be devastating and expensive. In most states it is the biological or legally adoptive parent(s) who can nominate potential guardians for their minor children. This is usually done in a Will and must be done in accordance with state law. A person so appointed by the parent will have priority over any other person. If there is no appointment, the Judge will determine what he or she thinks is best for the minor child between competing claims. While it is difficult to think of not being there to raise your children, the alternative of the Judge choosing without your input should be more troublesome. While no person will ever replace you, here are some things to consider in naming a guardian:

  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 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?

  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.

Once you’ve made your choice, there are steps you can take to make sure the potential guardians you’ve chosen will have the guidance and support they need. Here are a few ideas:

  • Create a set of guidelines to convey information about your children, your parenting values and your hopes and dreams for your children.

  • Set up a trust that will hold the assets you pass to your children, and instruct the trustee to provide necessary financial assistance to the guardians. You can also create specific instructions about special things you’d like the trust funds used for, such as annual trips for your children to visit close friends and relatives, a particular summer camp, or putting in a swimming pool at the guardians’. Having the assets in trust will also allow you to ensure the children receive their inheritance at an age when they are better able to handle it as opposed to when they turn 18.

  • Designate “mentors” consisting of special people in your children’s lives to help guide them in ways for which the “mentor” is particularly well-suited. For instance, the person you choose for trustee may also be a good “financial” mentor for your children. Or you may want to designate a “spiritual” mentor, particularly if the guardians you choose have religious philosophies that differ from yours. You can also name in your estate planning documents people who you simply want to have ongoing involvement in your children’s lives. This can be a good way to include both sides of the family.

Conclusion

Choosing a guardian for minor children requires difficult decisions, but don’t let that stop you from putting a plan in place now.  If circumstances change, you can always change who you appoint as guardian over your minor children.  It is better to move forward now and make the best decision you can, rather than procrastinating and losing your opportunity completely.


This Newsletter is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem. Nothing herein creates an attorney-client relationship between Hallock & Hallock and the reader.