In this article, I’ll be covering the importance of choosing guardians, how to choose your children’s guardian, and other considerations that should be made in selecting guardians.
Why Is Choosing a Guardian for Your Children So Important?
While there are many benefits of estate planning and having a proper last will and testament, one of the most motivating benefits to children is the desire to name a guardian to care for their minor children. The process of selecting a guardian can be difficult and emotionally draining. However, if the unthinkable happens and you have not appointed a guardian for your children, the court system will appoint a guardian for you. The court will use what is known as the “best interests of the child” test, reviewing a variety of factors in an effort to select a guardian for your children. Applying such a test can be problematic in many situations such as:
- When you have no family members available to serve as guardian.
- When you do not want certain family members raising your children.
- You are concerned about the likelihood of a legal battle within the family, for example, between the children’s grandparents or between your siblings.
- You would want the children to be raised by a step-parent. Stepparents do not automatically receive custody rights.
- Your family members live out of state. You come from a nontraditional family.
Why leave this important decision to a judge that doesn’t know you, your children, or your family? If you do not have family members capable of serving as guardian or if your family lives out of state, there is a risk that your children could be placed in foster care until a custody decision is made. In some cases, custody battles can drag on for years if there is a conflict among family members.
Make Sure You Have a Backup Plan
It is imperative that you appoint a guardian to make your wishes known regarding who you do and do not want raising your children. Not only should you decide on your first choice guardian, but you should also name at least one contingent guardian, preferably 3 or 4, as backups in the event that your first choice is or becomes unable to serve.
5 Steps to Choosing Guardians for Minor Children
Many parents know that they should select guardians for their children, but the reality is that doing so can be difficult. It is emotionally draining to consider your own death and the thought of your children being parentless. The subject can also bring up difficult family politics. Not only must you and your spouse come to an agreement, which in itself can be challenging for some, but expectations from your parents, siblings and close friends can be nerve-racking. Nonetheless, the decision must be made, so if you are still having difficulty choosing a guardian, here is a 5 step process to guide you in choosing a guardian:
1. Draft a list of traits and qualities that are most important to you when it comes to choosing a guardian.
Here are some questions to get you started:
- What values do you want your children to have?
- What skills and experiences do you want your children to have?
- What sort of role models would you like your children to have?
- What parenting style would you prefer to see your children raised with?
- What sort of family environment would you prefer your children to be raised in?
- Do you have particular religious beliefs that you want your children to grow up with?
- Do any of your children have special needs that will need to be taken into consideration?
If you are going through this process with your spouse, start with each of you creating your own list, then combine lists to create a third list of important qualities. As a couple, try to roughly rank the qualities in terms of which are exceptionally important, important and merely desirable.
2. Begin generating a list of possible guardians.
Begin with an “inclusive” mindset, as you will have the opportunity to narrow the list later on. Do not limit yourself to family members. For some, a close friend may end up being a better fit for their family's needs.
3. Start narrowing your list of potential guardians by comparing it with your list of qualities from Step 1.
In addition to those qualities also consider the following:
- Is the person physically able to care for your children?
- Does the person have a stable, responsible lifestyle?
- Does the person live locally or would your children need to be relocated?
- Does the person already have children? For some, the presence of other children is desired to provide companionship. However, if you have many children, the burden on someone with their own children may be too substantial and you might wish to consider a childless couple.
It is common, when choosing guardians, to think in terms of couples, for example, “we want Bob and Susan to raise our children.” However, the best approach is to name guardians individually, otherwise, you introduce the risk of dispute if the couple divorces or one spouse predeceases you. Let’s say, for example, that Bob predeceases you, the question is then raised of whether or not you would want Susan to raise your children on her own or if you would have picked someone else. Depending on your desires and the circumstances of those you are selecting, it may be a good idea to include certain qualifications, for example, you may state that you want Bob and Susan as guardians, but if they were to divorce, you want Bob to raise your children. On the other hand, if your children are already being raised by Bob and Susan and Bob dies, you would want the children to remain with Susan for stability purposes. It may sound like overkill, but if you are going to take the time to select guardians, then it is worth taking the extra time to consider the contingencies and discuss them with your attorney.
Continuing narrowing your list until you are left with 3 to 5 guardians ranked in order of preference.
4. Approach each of the 3 to 5 potential guardians and ask whether they would be willing to serve as potential guardians for your children.
This may require a discission of both your expectations and the expectations of the potential guardian. The potential guardian may wish to know whether you will be leaving life insurance to provide for the children and whether they will have funded college education accounts, for example. If your choice of guardian declines the responsibility, try not to take it personally. Most likely the person has important reasons or concerns about their ability to take on the responsibility.
5. Make it legal.
Now that you’ve selected your guardians, you will need to indicate your wishes in a written, formally attested last will and testament. In many instances, if you have minor children a trust will also be appropriate. An estate planning lawyer can guide you through this process and the particular requirements of your state.
You may also wish to write a letter of instruction. I plan to write more on letters of instruction in the future, but in short, a letter of instruction is a non-legally binding document that you may wish to leave with your last will and testament providing guidance, instructions and such to the letter’s recipient. So, for example, you might leave a letter of instruction to your appointed guardians regarding special wishes you have regarding the upbringing of your children.
Additional Considerations for Choosing Guardians
As a conclusion to this series on choosing guardians for your minor children, I wanted to note a few additional items that you may wish to consider in choosing your guardians.
1. The guardian and the trustee do not have to be the same person.
As I mentioned in Part 2 and will elaborate on more fully in a future post, it often is prudent to have estate planning documents that include a trust to manage any assets passed on to your minor children. The trust can be contained right within your last will and testament, or depending upon your needs and complexity, a separate trust document may be warranted. In choosing guardians, keep in mind that the child-rearing and financial aspects can be separated, if you feel that is most appropriate. The person that you appoint as guardian is responsible for raising your children and the trustee is the person designated to manage your children’s assets on behalf of your children. If you find that you are on the fence between your top choices to be appointed guardian, or if you and your spouse are divided, then appointing one person as the guardian and one as the trustee may be a good compromise. In fact, naming separate persons to be guardian and trustee is often desirable because it creates a sort of checks-and-balances system with two people have some form of responsibility in your children’s upbringing.
2. Consider writing a letter of explanation.
As much as I would like to be able to tell my clients that their guardianship designations are iron-clad, that is not the case. The reality is, under North Carolina law, that the courts do have the ability to override your decision. However, this is extremely rare. Judges typically place a high value on the desires of the deceased parents in making a decision. If you have any concerns about a judge not honoring your decision, you may wish to write a letter of explanation. A letter of explanation is not legally binding, but it allows you an opportunity to explain the reasoning that went into selecting the guardian. Similarly, if you have reasons for believing why someone, including a former spouse, maybe an unfit parent, those reasons may also be included in your letter of explanation. Again, the judge is not obligated to follow your letter of explanation, but it will give the judge additional information that may be useful in making a final decision.
3. Discuss your decision with family and friends.
Take the time to discuss your guardianship decision with family and friends. A simple discussion upfront can avoid hurt feelings and disputes in the future, especially if it seems that certain friends or family members might have expectations of being appointed as guardian.
4. Periodically review and update your guardianship designations.
Over time, life circumstances may change for both your and your selected guardians. Be sure to review and update your selections accordingly. You may find that as your children age, you think a different person would be better suited to raise your children. Perhaps the health of your original guardian has deteriorated. Maybe the sibling that you originally worried wasn’t yet mature enough has now settled down or perhaps the person you appointed now has four children of their own and would be overburdened if asked to raise your children.
Additional Help for Parents with Minor Children
If you have minor children, make sure you check out our free PDF, Guide to Choosing Guardians for Minor Children, which includes advice to help you get started brainstorming potential guardians, a child-raising priorities checklist, and FAQs about choosing guardians for minors. Or, contact us to discuss the best way to get started at 919-500-7754 or via our contact form.