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Choosing a Guardian is Important

Who Will Raise the Children?

Many young families delay their estate planning. Common refrains include: We don’t have a lot of assets. It’s too expensive. We don’t know where to start. 

As the last two years have taught us, even otherwise healthy young adults are not immune from accident or illness. Parents with minor children especially need an estate plan because others depend on them. It’s crucial to record your last wishes so your family and children are cared for in the event of your death. An estate plan will address what happens to your assets, name your financial and healthcare powers of attorney, and describe your organ donation and funeral wishes. The most important part of the process, however, is naming a guardian for your child or children. It is also one of the most challenging parts of the process.

If you do not name a legal guardian, a court will do it for you, and it may not be the person(s) you would have chosen. It is also important to name a guardian for each of your children if there are multiple kids. You can (and most parents do) name the same guardian for each child, but don’t assume a court would do the same. This is especially true if one of the children has special needs. 

But how do you decide on the guardian? Start with willingness to serve, followed by shared personal or religious values, age, ability, geographical location, whether your child would have to change schools, financial stability (or will you provide for your kids after your death?), and whether this person travels frequently or moves around a lot for a job. 

If you choose someone who isn’t a relative, will he or she foster continued access to your child’s extended family? While it is often the case that the guardian is a relative, you should choose a guardian who will love your child, who shares a similar parenting style to you, and who will provide meaningful caregiving, education, and support. If you are having trouble communicating your wishes with a relative about guardianship, your estate plan can include a “guardian exclusion letter,” which identifies who you expressly do not want to raise your child. This is not read until after your death.

The nomination of a couple or co-guardians is another issue to consider. If it is important to you to have your child raised in a two-caregiver home, you must nominate each one to act as co-guardians. Your plan should specifically state the parameters of guardianship. This protects your child in the event that your best friend and her spouse separate, for example. If your real connection is with your best friend, you have no intention that her (future) ex remain as your child’s guardian. In the event that your first choice for a guardian would be unwilling or unable to serve, it’s important to identify alternate guardians as well.

In addition to a permanent guardian, your estate plan should also name temporary or short-term guardians. Let’s say, for example, you’ve chosen your older sister to be the primary guardian, but she lives in California. It may be a few days after your death before your sister can physically get to your child. Unless you’ve named a short-term guardian, such as a friend or family member who is nearby and has a relationship with your child, there is a chance your child, who has just suffered a devastating loss, could be placed in foster care until your sister arrives. 

While it may be difficult to identify someone who satisfies all of these criteria, careful consideration is key to making the best possible choice for your child. Before naming guardians in your estate plan, be sure to have a meaningful discussion with the people you want to choose to confirm they are willing and to ensure they will honor your wishes. Your care and attention to this issue now will affect your children long after you are gone. 

Terry Frank is the founder and managing partner of Terry Frank Law. She has practiced in Virginia and North Carolina for nineteen years, and focuses her practice in estate planning and business litigation. As a parent herself, she is especially committed to providing young families with the information and estate planning resources they need to feel confident about planning for their families’ futures. Terry has one teen daughter and lives in Northside with her family.
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