Do It Now: Name a Guardian for Your Minor Children
We know it is difficult, even horrific, to imagine someone else raising your children. However, you must consider who you would choose to fill this important role. Otherwise, a judge—a stranger who does not know you or your wishes, your child, or your relatives and friends—will determine who raises your children if something happens to you. Depending on state law, failing to name guardianship of a child in your estate plan could mean that your child’s guardian could be a relative you do not get along with or, less commonly, a stranger you have never met.
Naming guardianship of a child is of the utmost importance
No one will ever be you or parent exactly like you. More than likely, however, someone you know could do a decent job providing for your children’s general welfare, education, and medical needs if you can no longer do so. Parents with minor children must name someone to raise their children in the event both parents die or are otherwise unable to care for them before the children become adults. While the likelihood of you and the children’s other parent both passing away or becoming unable to parent your children is slim, the consequences of not naming guardianship of a child can be severe, and are well worth contemplating and addressing.
If no guardianship of a child is nominated within your will or separate writing, if recognized and allowable in your state, a judge will decide who is granted guardianship. Anyone can ask to be considered, and the judge will select the person they deem most appropriate. Families tend to fight over the custody of children when a loved one dies, especially if money is involved. On the other hand, if you name a guardian, the judge will likely support your choice as long as the individual you select is willing and able to take on the responsibility of raising your children.
How to Choose Guardianship of a Child
Your children’s guardian can be any individual you feel comfortable with, whether they are a relative or friend. Here are the factors our clients have considered when selecting guardians (and backup guardians).
- How well the children and potential guardian know one another and whether they enjoy spending time together
- Parenting style, moral values, educational level, health practices, and religious or spiritual beliefs
- Where the guardian lives; if it is far away, your children would have to move from a familiar school, friends, and neighborhood to a new and unfamiliar location
- The age and health of the guardian-candidates:
- Grandparents may have the time but not the energy to keep up with a toddler or teenager.
- An older guardian may become ill or pass away before a child is grown, so your child could potentially face the loss of an additional parental figure.
- A younger guardian, especially a sibling, may be too focused on establishing their own lives, especially if they are finishing college or starting a career.
WARNING: Serving as guardian and raising your children is a big deal; do not spring this responsibility on anyone without speaking with them about your expectations and ensuring they are willing and prepared. Ask your top candidates if they would be willing to serve, and ensure you name at least two alternates if your first choice cannot serve.
Who Is in Charge of the Money?
Raising your children should not be a financial burden for the guardian, and a candidate’s lack of finances should not be the deciding factor. Ideally, you can provide enough money (from your accounts, property, and life insurance) to provide for your children after you pass away. Some parents also earmark funds to help the guardian buy a larger car or house or build an addition onto their existing home so there is plenty of room for taking on the responsibility and addressing the needs of extra children.
Additional Factors to Consider When Deciding Who Manages the Children’s Money
- In some circumstances, naming a person separate from the guardian to manage your children’s inheritance may be a good idea. That person would fill the role of your successor trustee and manage the money and property set aside for the children in a trust designed for them. The guardian would be responsible for the day-to-day raising of the children.
. - Under appropriate circumstances, having the same person raise the children and handle the money can simplify things because the guardian would not have to ask someone else to make distributions for the children’s benefit.
. - In some situations, the best person to raise the children may not be the best person to handle the money, and it may be tempting for them to use this money for their own purposes. So, dividing the responsibilities may be particularly beneficial and avoid the misuse of any money you leave for your children’s benefit.
Let’s Continue This Conversation
We know thinking about death or your potential inability to care for your child is not easy, but do not let that stop you from creating a proactive plan to address the unexpected. At McDonald Law Firm, we are happy to talk this difficult topic through with you and legally document your wishes so that they are enforceable at your death. Understand that you are not bound to your initial selection and can change your mind and select a different guardian at any time. The chances of actually needing the guardian to step in are usually slim (we always hope this is the one nomination that is never needed). However, your job as a parent is to provide for and protect your children. So, begin planning by calling Andre O. McDonald, a knowledgeable Howard County, Montgomery County and District of Columbia estate planning, special-needs planning and Medicaid planning attorney at (443) 741-1088; (301) 941-7809 or (202) 640-2133 for an appointment.
DISCLAIMER: THE INFORMATION POSTED ON THIS BLOG IS INTENDED FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED TO CONVEY LEGAL, INSURANCE OR TAX ADVICE.
