Guardianship of a Child

One type of Estate Planning concern is who will have Guardianship of a Child if the parent(s) pass away or become incapacitated.  Some include Guardianship Directives in a Will, however, in my opinion it is best to have Guardianship Directives in a separate legal document. Originals and copies of this document should be given to your attorney and the Guardian.

Choosing a Guardian for your children can be a very stressful and difficult decision to make. You want to do what is best for your children, but also have emotions, loyalties, and expectations from others/society as to who are the right people to consider. In my experience, 10 things to consider are as follows:

1. Think Beyond the Obvious Choices. Emotionally we default to Grandparents and siblings, however, the emotion, loyalty, or expectation to choose family members as Guardians may cloud any negatives involved. Make a list of family and family friends to help make the decision as informed as possible. Your children may be closer to other family members (aunts, cousins, etc), or family friends, and these people may best fit the other considerations listed below. Remember, this is about what is in the best interest of your children, not trying to spare others from hurt feelings. If your children are teenagers, you could involve them in the decision-making process.

2. Age/Health. Are the possible Guardians of an age they can properly care for and keep up with your children? Consider what is needed to care for children that are infants, toddlers, and teenagers. Does the age or health of the potential Guardian create the possibility of them passing away or being hospitalized for serious health conditions while Guardian of your children? For this reason, I counsel clients in some instances to think beyond Grandparents. While emotion creates a default to Grandparents, depending on their age and health, it may not be the best situation for them or for your children. Also, consider if Grandparents have worked hard their whole lives to enjoy retirement. Is it fair to ask them to trade that for being primary caregivers to young children again? There is no reason that Grandparents cannot still be extremely involved in their grandchildren’s lives. In fact, visitation with Grandparents can be required in the Guardianship Directive.

3. Location. If all suitable family members live in other cities or states, is uprooting your children when they have just lost their parents the best thing for them? Does staying in the same town and school with familiar friends, teachers, community and activities serve your children better during such a time of loss, sadness, and upheaval? This is important to consider especially when children are teenagers and have strong roots in school, the community, activities, and peer groups.

4. Economics. Who is best suited to provide for your children as closely as possible to how you provided for them; this may not be as important as love and stability are, but is something you should at least think about. Even though you will leave assets and life insurance proceeds to your children (I will discuss the importance of life insurance in another post), there will still be a cost to whoever is the Guardian of your children. You do not want to create a substantial financial burden for your Guardian as that can cause issues and resentment. This consideration becomes more critical if your children have private school tuition, participate in expensive or many extracurricular activities, have high medical costs due to health conditions, etc.

5. Choose a Single Person. I counsel clients that if considering a married couple, choose only one of the couple to be named as Guardian in the Guardianship Directive, not both. If the couple decides at some point to separate or divorce, you do not want your children to be thrown into the middle of an ugly custody battle. In the event of a separation or divorce, the named Guardian will retain custody of your children.

6. Family Situation/Dynamics.  If selecting a couple, consider if the marriage appears to be stable and loving. While you cannot predict what could happen in the future, you do have a sense for how things are today. How many children does the potential Guardian have? Adding your children may cause a burdensome situation. How do your children get along with the Guardian’s children? What is the potential Guardian’s extended family like? Consider how your children will blend and fit into this new family dynamic.

7. Political, Religious and Moral Beliefs. These are important aspects of a potential Guardian to consider. Is it possible the Guardian, Guardian’s spouse, or their extended families may present undesired or non-conforming political, religious and/or moral beliefs upon your children? If you are religious, will the Guardian support that in your children’s lives, even if it is different than their own religion? Have your children been raised with specific political and moral beliefs you wish to be supported by a Guardian? If you are a bi-racial, multicultural, or adoptive family, how will your children be accepted and treated by your Guardian and their extended family? Will they support the different culture or race of your child? Will they be understanding, and able to deal with issues related to adoption and race? Personally, being a parent of an adopted Asian child, my wife and I had to be very deliberate in our choice of a Guardian for these reasons.

8. Parenting Style. Does the potential Guardian share a similar parenting philosophy to yours with regards to things like discipline, education, affection and support?

9. Alternate Guardians. To plan for things such as age, health, negative family/personal situations, or death of the Guardian, alternate Guardians can and should be named in the Guardianship Directive.  Having a backup plan for these circumstances ensures your children are still being cared for by someone, and in a manner of your choosing.

10. Willingness to Serve. Be sure to speak with the potential Guardian as well. Their reaction to being asked may say a lot about whether they are the right choice. Also, you do not want this to be sprung on them after your death, they should know ahead of time, be prepared, and able to decline to serve as Guardian.

A Guardianship Directive does not have to be limited to the naming of a Guardian and alternates. You can also include directives about schooling (assuming you leave the necessary funds to support tuition), activities, contact with other relatives and friends, and more. You can discuss with your attorney any other directives you wish to include.

The named Guardian can also change over time and the directive be amended. As our lives and relationships have changed, and as our daughter has grown up, my wife and I have amended our Guardianship Directive multiple times.

Using the above list of considerations, I believe it helps to create an old-fashioned Pros and Cons list to create a visual and tangible tool to help make the best decision. No person is going to be perfect and fit all your requirements, therefore, the list will help illustrate who best fits into the criteria that is most important to you personally.

In closing, know that if you do not take the time to put your Guardianship desires in a legally binding document, the Guardianship of your children will be put into the hands of your local court system and child services division; this will be an unpleasant experience for your children, family, and friends. The decision ultimately made may not align with what you would have preferred.