It is excruciating to imagine anything traumatic happening to parents with minor children in their care – most especially their death. So understandably, parents tend to behave like ostriches – proverbial heads in the sand – avoiding the most sensitive and crucial questions around choosing a guardian for a minor child or children should they die or be rendered unable to parent their children.
Children Deserve to Have Good Guardians Come What May
There are two things to remember about this challenging subject:
- First: Choosing guardians is not just about death or dying; it’s also an essential consideration if you are incapacitated in any way (car accident, coma, sudden illness, long-term hospitalization or treatment, etc.).
- Second: If you don’t choose a guardian for your minor or a special needs child, the state will. They may not select the same person or couple you would.
9 Things to DO and NOT DO When Choosing A Guardian for A Minor Child
While guardian selection may be inherent in a particular religious or spiritual tradition, such as the “God Parents” selection in the Judeo-Christian tradition, they don’t necessarily hold up in court. And, for many couples, the selection of God Parents may have more to do with honor or “in name only” sentiment rather than the actual expression of “we want you to care for and raise our child(ren) if we can’t.”
That’s where estate planning and choosing guardians for a minor child come into play. Here are nine things to do – and not do – when selecting guardians for a minor child or children.
Do not worry about hurting people’s feelings when selecting guardians
Along the lines of “honorific” Godparent selections, which are often made to avoid hurt feelings, choosing a legal guardian for your child has an immediate and significant impact on your child’s well-being. This is no time for worrying about hurt feelings. Your choice is the only choice. Period.
While we always feel it’s best to let chosen guardians have a choice, there is no obligation to inform anyone else of your selection. Instead, always honor your gut instincts and select the person or people you feel are best for the job, regardless of how that may make others feel.
Remember you can always change your mind
With the exception of irrevocable trusts, all estate plans are changeable. This is why we recommend reviewing estate plans annually, allowing you to change anything that no longer feels right or to accommodate life changes such as divorce, deaths in the family, or changes in beneficiaries/heirs financial status that might alter how assets are allocated, etc.
The same is true for guardianship. You can contact your estate attorney and change the name(s) of selected guardians at any time.
Your parents (the grandparent) may not be the best choice
Sometimes there is an automatic assumption that parents (your child’s grandparents) are the automatic or best choice. In fact, this is rarely the case. For one thing, their grandparents’ age means your children are more likely to suffer another death or incapacitation situation sooner rather than later, and this is emotionally challenging. In a worst-case scenario, if the kids are still minors, they’ll need another guardian appointment. We wouldn’t wish that on any minor child or young adult.
Also, keep in mind that grandparents serve a unique role in children’s lives – one of more objective, unconditional love and acceptance. Therefore, it often makes more sense to keep that relationship intact separate from “parenting” – and select another adult or couple to be the guardians.
Always choose backup guardians
We always advise choosing three to four different guardians. This adjusts for any changes that might render Guardian 1 a no-go (moving far away, death, a new partner who doesn’t want/like children, etc.)
Choose guardians with similar values
They say it takes a village to raise a healthy and well-rounded child. This is proven when you select the right guardians to care for your children. However, we recommend selecting an adult or couple with similar values regarding financial outlooks, cultural acceptance, religious/spiritual views, etc.
Anyone can change, but those with similar values are the most likely to honor your wishes and instructions for how you want your children to be raised. The goal is to choose someone who will love your child(ren) while providing healthy parenting guidance and boundaries.
Don’t rule out single family members or friends
Parents tend to lean towards couples when selecting guardians, and there’s nothing wrong with that – especially if they are the best choice. However, the current rate of divorce in the U.S. is 50% (divorce.com). There’s no guarantee the couple will remain a couple. Also, you may have selected the couple due to one of the partners – not necessarily both.
So, state the guardian clearly. This might be one person in a couple (which means your child(ren) would remain with them in the case of separation or divorce), or it might be a solidly single friend who you trust with your most precious treasure.
Be prepared to compromise with your child’s other parent
You may find you and your partner are not in agreement about who gets the children if you die or are incapacitated. If you truly cannot make a decision, we recommend finding a compromise, including things like:
- Letting one of your choices act as physical guardians while the other oversees the financial responsibility.
- Creating specific documents about regular visitation rights, holiday sharing, vacation opportunities, etc.
- Listing who you don’t want to raise your children (see next) so those sentiments are also honored.
List who you DO NOT want to have custody of your child when choosing a guardian for a minor child
Again, we want to reiterate what we highlighted at the beginning: If you don’t choose a guardian for your child, the court will. Just as an estate without a will or trust goes into probate and intestate succession processes, the guardianship for your child is decided along similar lines. This may mean your child goes to exactly the wrong person – such as an alcoholic grandparent or a historically irresponsible aunt/uncle.
Stating who you DO NOT want to be a guardian is almost equally important as choosing and legally documenting who you do choose to serve as a guardian for a minor child.
Create stability around home, finance, and future with estate planning
Perhaps the person you’d choose to be your child’s guardian is poor, lives further away than you’d like, or lives in non-ideal (or unsafe) living conditions. Don’t let that deter you. If the person you’ve selected is up for the responsibility, we can take care of the rest through careful estate planning. You can:
- Let them move into your home or provide money allocated for a different rental/purchased property that meets your stated qualifications (close to desired schools, near friends/family, etc.).
- Leave them an inheritance through a trust that prioritizes (and monitors) mortgage payments and childcare expenses.
- Distribute assets to others that you trust to manage the finances.
- And more.
Let Tseng Law Firm Assist In The Selection Of Your Child’s Guardian
There are many creative ways to create the best guardianship situation for minor children. In addition to providing invaluable peace of mind, Tseng Law Firm’s estate planning support can help your child(ren) thrive in the midst of a challenging and heartbreaking reality. Contact us to schedule an initial consultation.