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. If you do not express your wishes, a judge who does not know you, your children, or your family relationships may have to decide who should raise them.
Depending on the circumstances and applicable state law, the court could select a relative you would not have chosen. Less commonly, the court may need to consider someone your children do not know well.
Naming a preferred guardian in your estate plan gives the court clear guidance about the person you trust to care for your children.
Why Is Naming a Guardian So Important?
No one will ever be you or parent your children exactly as you would.
More than likely, however, someone you know could provide for your children’s general welfare, education, medical needs, and emotional well-being if you can no longer do so.
Parents with minor children should nominate someone to raise their children if both parents die or otherwise become unable to care for them before the children reach adulthood.
The chance that a guardian will actually be needed may be small. The consequences of failing to plan, however, can be severe.
What Happens If You Do Not Name a Guardian?
If you do not nominate a guardian in your will or another document recognized by your state, the court will decide who should care for your children.
Relatives or other legally interested people may ask the court to appoint them. If more than one person seeks guardianship, disagreements can arise over who should raise the children.
These conflicts can become especially difficult when inheritance or control of the children’s money is also involved.
If you nominate a guardian, the judge will generally consider your preference when determining what is in the children’s best interests. The court may appoint your nominee if that person is willing, able, and legally qualified to serve.
The Maryland Register of Wills identifies nominating a trusted guardian for minor children as one of the important reasons to create a will.
A Guardian Nomination Is Not an Automatic Appointment
A parent nominates a guardian. The court makes the legal appointment.
The judge retains the authority to consider the children’s best interests and the circumstances that exist when a guardian is needed.
Still, a clear nomination gives the court valuable evidence of your wishes. It may also reduce uncertainty and conflict among surviving family members.
How Should You Choose a Guardian for Your Child?
Your children’s guardian can be a relative or friend you trust.
The ideal person does not have to share every one of your beliefs or make every parenting decision exactly as you would. The person should be capable of providing a safe, stable, and loving home.
Consider both the person’s current circumstances and what their life may look like several years from now.
Your Child’s Existing Relationship With the Guardian
Consider how well your children and the potential guardian know one another.
Ask yourself:
- Do they enjoy spending time together?
- Does your child trust this person?
- Is the person patient with your child?
- Does the potential guardian understand your child’s personality and needs?
- Has this person spent meaningful time caring for your child?
An established relationship may make a difficult transition less traumatic.
Parenting Style and Personal Values
Consider whether the potential guardian’s approach to parenting generally aligns with yours.
Relevant factors may include:
- Moral values
- Discipline
- Education
- Health and medical care
- Religious or spiritual beliefs
- Family relationships
- Emotional support
- Attitudes toward money
- Willingness to seek professional help when needed
You may not find someone who matches every preference. Focus on the values and practices that matter most to your family.
Where the Guardian Lives
Location can have a major effect on your children.
If the guardian lives far away, your children may have to leave their school, friends, neighborhood, activities, healthcare providers, and extended family.
In some situations, moving may still be the best option. The guardian’s ability to provide a stable home may matter more than remaining in the same community.
Consider whether the potential guardian would relocate, whether your children would move, and what support would be available in either location.
The Guardian’s Age and Health
Age should not automatically disqualify someone, but it is a practical consideration.
Grandparents may have time, experience, and a close bond with the children. However, they may not have the health or energy to raise a toddler or teenager.
An older guardian may also become ill or die before the child reaches adulthood. This could cause the child to experience the loss of another parental figure.
A younger guardian may have the energy to raise the children but may still be finishing college, starting a career, building a relationship, or establishing financial stability.
The right choice depends on the person rather than age alone.
The Guardian’s Existing Family
Consider how your children would fit into the potential guardian’s household.
Questions may include:
- Does the guardian already have children?
- Would the home have enough space?
- How would the guardian’s spouse or partner feel?
- Would all the children be able to remain together?
- Are there family conflicts that could affect your children?
- Would the guardian have enough time and support?
The decision will affect the entire household, not just the person you nominate.
Speak With the Guardian Before Naming Them
Serving as a guardian and raising someone else’s children is a major responsibility.
Do not surprise someone with this role after your death. Speak with your preferred guardian before putting the nomination in your estate plan.
Discuss:
- Your expectations
- Your children’s needs
- Where the children might live
- Available financial support
- Education and healthcare preferences
- Family relationships you want preserved
- Whether the guardian is genuinely willing to serve
A person may love your children but still be unable to accept full parenting responsibility. It is better to learn that now and select someone else.
Name More Than One Backup Guardian
Your first choice may be unable or unwilling to serve when the time comes.
The person may become ill, die, move, experience a major family change, or no longer have the ability to care for additional children.
Name at least one backup guardian. Naming two alternates may provide even greater flexibility.
The Maryland Register of Wills specifically notes that a will can nominate a guardian and successor guardians for minor children.
Review these selections regularly. A guardian who was a good choice five years ago may no longer be the right choice today.
Should Siblings Have the Same Guardian?
Many parents want their children to remain together.
In most circumstances, keeping siblings in the same household can preserve important relationships and provide stability after a loss. Your estate plan can express that preference.
However, there may be situations in which different arrangements are necessary. One child may have medical, developmental, educational, or behavioral needs that a particular guardian is best equipped to address.
Discuss these concerns with your attorney. The plan should provide guidance without creating an arrangement that could become impractical.
Who Will Manage the Children’s Money?
The person who raises your children does not necessarily have to manage their inheritance.
Maryland distinguishes between:
- A guardian of the person, who cares for the child and makes health and education decisions
- A guardian of the property, who manages property belonging to the child
The Maryland Courts glossary explains these separate roles.
A trust can also place a child’s inheritance under the management of a trustee rather than a court-appointed guardian of the property.
Provide Financial Support for the Guardian
Raising your children should not become an unreasonable financial burden for the guardian.
A potential guardian’s current finances should not necessarily be the deciding factor. Ideally, your estate plan, accounts, property, and life insurance will provide enough money to support your children.
Some parents also authorize funds to help the guardian:
- Purchase a larger vehicle
- Move into a larger home
- Build an addition
- Pay for childcare
- Cover healthcare expenses
- Pay education costs
- Provide counseling or other support
These instructions should be clearly incorporated into the trust or estate plan.
Should the Guardian and Trustee Be the Same Person?
There is no single right answer.
The guardian is responsible for raising the children. A successor trustee manages the money and property held in trust for them.
Parents may give both responsibilities to one person or divide them between two people.
Benefits of Choosing the Same Person
Having the same person raise the children and manage the trust can simplify daily decisions.
The guardian would not need to ask someone else for money every time the children need school supplies, medical care, clothing, or activities.
This arrangement may work well if the guardian is trustworthy, financially responsible, organized, and able to separate the children’s money from personal funds.
Benefits of Choosing Different People
The best person to raise your children may not be the best person to manage investments and financial records.
Dividing the responsibilities can create oversight and reduce the risk that money intended for the children will be misused.
A separate trustee can:
- Manage and invest trust property
- Review requests for distributions
- Maintain financial records
- File tax returns when required
- Protect the inheritance
- Ensure that funds are used for the children
The trustee and guardian must be able to communicate and work together. A poor relationship between them can lead to delays and disagreements.
Give the Trustee Clear Instructions
Your trust should explain how money may be used for the children.
Distributions may cover:
- Health
- Education
- Maintenance
- Support
- Housing
- Transportation
- Extracurricular activities
- College or vocational training
You can also authorize larger expenses that help the guardian accommodate your children.
If property passes directly to a minor without a trust or another protective arrangement, a court may need to appoint a guardian of the property. Maryland’s Orphans’ Court explains that a court-supervised property guardianship may be required when an inheritance is payable to a minor.
What If You Become Incapacitated but Do Not Die?
A will generally addresses what happens after death. Parents should also consider who can care for their children if illness or injury leaves them temporarily or permanently unable to do so.
Maryland recognizes standby guardianship in certain circumstances. A parent may nominate a standby guardian to care for minor children following mental incapacity, physical debilitation, or an adverse immigration action.
The Maryland Courts provide information about standby guardianship, including the circumstances in which the arrangement may be used.
Your attorney can help determine whether standby guardianship or another authorization should be part of your plan.
When Should You Review Your Guardian Selection?
You are not permanently bound to your initial choice.
You can change your guardian nomination by properly updating your estate planning documents. Do not simply write a new name on an existing signed will.
Review your selection after:
- The birth or adoption of another child
- A move to another state
- Marriage, divorce, or remarriage
- A guardian’s illness or death
- A major change in the guardian’s household
- A change in your relationship with the guardian
- A child developing new medical or support needs
- A substantial change in your finances
- A guardian telling you they can no longer serve
Regular reviews help ensure that your plan reflects your current family and relationships.
Start the Guardianship Conversation Now
Thinking about your death or inability to care for your children is not easy. Do not let that discomfort prevent you from creating a proactive plan.
The chance that your nominated guardian will ever need to step in may be slim. We always hope this is the one nomination that is never needed.
Your job as a parent is to provide for and protect your children. Naming a guardian, backup guardians, and someone to manage the children’s inheritance is an important part of that responsibility.
We Can Help You Protect Your Children
At McDonald Law Firm, we can help you talk through this difficult decision and legally document your wishes.
Attorney André O. McDonald assists families in Howard County, Montgomery County, and the District of Columbia with estate planning, guardianship, special needs planning, Medicaid planning, and related matters.
To schedule a consultation, call:
- Howard County: 443-741-1088
- Montgomery County: 301-941-7809
- District of Columbia: 202-640-2133
DISCLAIMER: THE INFORMATION POSTED ON THIS BLOG IS INTENDED FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED TO CONVEY LEGAL, INSURANCE, OR TAX ADVICE.
