Choosing Guardians, Part 3: Additional Considerations

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 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 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 overburdened if asked to raise your children.

See also:

Choosing Guardians, Part 1: Why It’s Important

Choosing Guardians, Part 2: 5 Steps to Choosing Guardians

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