Having children adds an new and extremely important dimension to estate planning. If all of a child's legal parents are dead or incapacitated, and never made arrangements for such an emergency, the child will have to be placed with a new family. This is an extremely disruptive process for the child, even if the new family are grandparents or other relatives. It can be avoided if a parent chooses a guardian for the child in a will or a grant of guardianship.
DIFFERENT PURPOSES. There are two kinds of guardians: guardians of the estate, and guardians of the person. The former manages the money or assets held by a child, either when the parents are alive or after their death. A guardian of the person, however, is someone who becomes a substitute parent for the child should the child's actual parents die or become incapacitated or otherwise unable to take care of them.
MATCHING ATTRIBUTES. When selecting a guardian, be aware of the two types, and choose people with the skills or attributes that best suit those roles. In other words, your accountant brother-in-law may be a terrific choice as guardian of the children's estate, but his workaholic nature may make him a poor choice for guardian of the person.
MULTIPLE GUARDIANS. Just as you can choose different people to be guardians of the estate and person, you can also choose more than one of each type if you have multiple children. For instance, if you have a large family and know that the burden of raising multiple children or managing their assets would be too much to ask of one person, you can assign certain guardians to certain children. Whereas there are probably fewer emotional ramifications to such a choice when guardians of the estate are involved, there are larger considerations at issue when dealing with guardians of the person. Do you really want your children split up into different families if you and your spouse die or become incapacitated before they are grown? Maybe, maybe not.
SHARED VALUES. Choose someone you know well and who shares your goals, values, and parenting style, whether you are selecting a guardian of the person or estate. Even if the person you select is limited to making financial decisions on your child's behalf, you want that person to share your philosophy of childrearing in general.
FINANCIAL STABILITY. Choose someone who has the financial resources to care for your children. It costs a lot of money to raise and educate children, and you do not want to impose these economic burdens on someone who can not meet them.
LONGEVITY. Choose someone young enough to see their responsibilities through to your child's adulthood, and in good enough health to withstand the challenges of childrearing. While physical disabilities do not necessarily preclude good parenting, it is wise to consider health factors that may limit a person's life expectancy or ability to parent. It may be tempting to choose your own parents as guardians, but logically speaking they are less likely to outlive you than are persons your own age or younger.
BE INDEPENDENT. Don't be influenced by others' wishes as to whom you should select to be your child's guardian. Unless the person you've selected opposes your choice, this decision belongs to the parents alone.
CONSIDER CHARACTER. Don't choose someone that a court would not approve as a guardian, such as someone with a history of drug or alcohol abuse or a criminal record.
TALK IT OVER. Although the guardian selection decision belongs to the parents, it is important to get approval from the person you are considering before you make it final. There may be valid reasons why someone can not fulfill your request, and it is better to find that out while you still have the option of making another selection.
GET IT IN WRITING. Once your decision is final, consult your attorney to draft the necessary documents to make your choices legally binding and official. Wills, trusts, and other legal documents can be used to implement your guardianship decisions. Your attorney can advise you on proper procedure, prepare the necessary paper work, and file any required documents.
Next Steps: Get a Free Case Review
As you are thinking about your estate plan, one of the most crucial decisions you will have to make is the designation of a guardian for your child. There are a number of important legal aspects to consider and you likely have questions about the process. The good news is that you can get your questions answered today by an experienced family law attorney. Start the process with the free case evaluation at no obligation to you.