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:
- Will this person be capable of caring for my children for a long time? This may seem like a common-sense question, but we want to remind parents that when they are choosing a guardian, it is important to find a person or couple who will be able to walk with your child throughout their whole life, not just until he or she turns 18 years old. Even if your child’s grandparents seem like the best people to care for your kids, the reality is that you may want to consider age and health factors before choosing a potential guardian.
- Do the potential guardian’s values, hopes, and dreams match my own? You want your children living in an environment that is as close as possible to the one that you would provide for them. Talk to the potential guardian about their future plans for your children to get an idea of what the environment would be like for your child.
- Do they live fairly close to other relatives? In the event that your children lose their parents, they are going to need the support of other family members to help them with the grieving process and then to help them throughout the rest of their childhood. Make sure to choose a guardian with a geographic location that allows your children to be near other loved ones.
- Are the potential guardians capable of raising children? This question may seem obvious, but as organized as a person seems in their job and personal life, a child may change that. For example, if the guardian you are considering is a successful businessman or woman who travels a lot, that lifestyle may not be suitable for your child.
- Are there any special considerations? Think about religious beliefs, parenting styles, and the specific needs of your children to ensure that you're making the most informed choice possible.
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.
Continue 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 discussion 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 guardians and trustees is often desirable because it creates a sort of checks-and-balances system with two people having 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, may be 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 guardians.
4. Periodically review and update your guardianship designations.
Over time, life circumstances may change for both you 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.
