If you have minor children, then probably the most important decision that you’ll have to make with regard to your estate plan is who should take care of your children if you die while they’re still minors. In legal terms this is called a guardian or conservator of the person. Many people in this situation are at a loss when trying to choose among family members and friends, since each person will have pros and cons. These are the main points to consider when deciding who to name as the guardian of your minor children:
Many clients naively think that if they die, the person they choose as guardian for their children will pack up their bags and move right into the children’s home or buy a house in the neighborhood. This is really asking a lot from your guardian. What is more likely to happen is that the children will move in with the guardian if they have room and, if not, then the guardian will buy a larger house in their current location to accommodate their family and yours. So think about where the person you want to name as guardian lives and if you’re ok with your children being raised there.
You must also take the time to think about your own religious, political and moral beliefs and then think about what you know about the potential guardian’s religious, political and moral beliefs. If you don’t know much about their beliefs, then you’ll need to ask because this is the person who you’ll be trusting to shape your children’s beliefs if you’re not around. And while it will be impossible to find a guardian who follows 100% of your personal beliefs, someone who follows 70% to 80% is certainly a better choice than someone who only follows 30% to 40%.
In addition, if the potential guardian is already a parent, then you must consider their parenting skills. Are they “hands on” with raising their own children or do they rely on outside help? Do you know their views on child discipline, education, sports, and other school activities? Or, if the potential guardian isn’t already a parent, then consider what you know about how they were raised since this will greatly influence how they will act as a parent.
The age of a potential guardian can cut both ways. On the one hand, an older guardian may be in a better position financially and have more time to be hands on with raising your children, but on the other, an older guardian may be out of touch with current trends in education and parenting and what kids today want and like. And there’s always the possibility that an older guardian may become ill or die before the children become adults.
A younger guardian may be too involved in getting their own career and family in order to worry about raising your children. This is also true for an adult sibling of a minor child—the sibling may be in college or beginning their career and not in the position to raise their younger sibling.
It is also important to think about whether the potential guardian you choose is married with minor children, married with adult children, a single parent, married without children, or single without children. If married, then how stable is the marriage? If single, is there a potential spouse or significant other on the scene? If the potential guardian doesn’t have any children, is there the possibility of children in the future? If the potential guardian already has children, how many do they have and what are their ages in comparison to your children? Considering the potential guardian’s family situation is the key to understanding how this can and will influence the upbringing of your children.
Another important matter to think about is the potential guardian’s financial situation. Do you know if the guardian is good with managing money, has a stable job, has a spouse or significant other with a stable job, or where the potential guardian gets money to pay the bills and put food on the table? Do you think that the potential guardian would have to quit their job or take on a second job to raise your children? As with considering the potential guardian’s family situation, considering their financial situation is the key to understanding how this can and will influence the upbringing of your children.
Asking the potential guardian if they want this responsibility is the right thing to do. If you don’t take the time to ask them if they’ll be willing to act as your children’s guardian, then you may be setting your children and family up for a court battle if the person you’ve chosen doesn’t want to or simply can’t serve. This is not the time to be shy—your children’s lives are at stake, so you need to be up-front with the potential guardian and your other family members or friends. And if you’re worried about hurting someone’s feelings, don’t. What’s best for your children is on the line, so your choice of their guardian needs to be based on what’s really best for them, not what will make your family or friends happy.
Although these seem like an overwhelming amount of points to consider when trying to decide who to name as your children’s guardian, the bottom line is that you’ll need to put the answers to the questions in order of priority for you and your children and then narrow down your selection from there. In fact, making an old fashioned pros and cons list should help in choosing the right person. Don’t overlook the importance of naming a backup guardian to your initial choice just in case they can’t or won’t serve. Otherwise it will be left up to a judge to decide who will raise your children.
The attorneys in the Trust & Estates Practice Group at Yedid & Zeitoune have a combined 15 years of legal experience.