Why Choose a Guardian

Choosing a person or family to care for your children is difficult. In fact, for many of my clients, it’s the hardest part of planning their estate. Anyone with a child under the age of 18 must consider who else could raise that child. Of course, we all imagine the worst case scenario – our own premature deaths – when we consider this. But there is a less tragic, and common, situation in which naming a guardian is crucial: incapacity. If you and your child’s father were unable to care for your children for a time, say, due to a car accident, who would watch over them while you recovered your abilities?

The younger your child, the more crucial is this choice, because very young children cannot form or express their own preferences about caregivers. As parents of teens remind me, however, young children are not the only ones who benefit from careful parental attention. And so nominating great guardians is crucial no matter how old your minor children are. Children close to 18 years old will be legal adults soon, but, as you well know, a parent’s job does not end when the child reaches 18. By naming and talking about your choice of guardian, you can encourage a lifelong bond with a caring family.

How To Choose A Guardian

The nomination of guardians is one of the most straightforward documents estate planning attorneys create. It can be as basic or as detailed as you want. You can take a simple approach and name the guardian who would act if both you and your spouse were unable to in a line or two and then sign the document (be aware of your states rules for how to properly witness or notarize this document!). Or you can provide detailed guidance about your children and the sort of experiences and family environment you would like for them.

Once you have put your wishes on paper, your state’s court can give strong weight to your choice. I know what you’re thinking: “Waaaaaait a minute, here, you mean my wishes aren’t final?” I’m afraid not. Unlike possessions which you can will away to anyone you choose, your child cannot be willed. With a parent unavailable to guide and protect the child, your State (via its court system) takes responsibility to ensure that your child’s best interests are protected and served.

The court’s obligation to make its own decision about who should be your child’s guardian does create an opening for arguments between family members. When family arguments are dragged into a courtroom, there is never a happy ending for all parties. So how can you avoid this? First, clearly nominate a guardian in a legally enforceable document. Then create a similar but confidential document to tell the court why some family members absolutely should NOT be the guardian of your child. Reserve this document for abusive or alcoholic family members: those people who would be worse than foster care. Finally, talk to your chosen guardians. Talk to the family members who will support your choice. You may even consider talking to family members who have not been chosen as guardians. It will give them time (hopefully, years) to get used to the idea and make them less likely to challenge your wishes.

So how do you actually choose the right person or couple? You may have too many loving family members to count. How do you choose among them? Or you may be from a small or dysfunctional family and wonder if you can find anyone suitable. Either way, you can make a good choice. Let me share two different methods. One of them is bound to work for you.

The Analytical Method

The first is for the analytically inclined: the four-step process:

STEP #1: Make a list

Make the longest list you can stand of everyone you know who might possibly be a good guardian. When considering whether someone should be on the list, ask yourself, “would they provide a better home for my children than the foster care system?” If the answer is yes, put them down. If the answer is no, note that too, for you may wish to express that under no circumstances should these people be made the guardians of your precious children. Your list could contain dozens of names but should have at least 3 or 4 people or couples before you call it a day.

Think beyond your sisters and brothers. Parents have chosen as guardians cousins, aunts and uncles, grandparents, child care providers, business partners, and friends. Consider long-time friends and those you’ve gotten to know at parenting groups or schools. These folks may share similar philosophies about child-rearing. Do not eliminate people from your list for financial reasons unless they lack basic money management skills. Sufficient life insurance in a well-drafted Children’s Trust can ensure your children’s material well-being.

STEP #2: Decide what matters most.

Choose a few factors that are most important to you. Here are some to consider:

• Maturity • Patience • Stamina • Age • Child-rearing Philosophy • Presence of children in the home already • Interest in and relationship with your children • Integrity • Stability • Ability to meet the physical demands of child care • Presence of enough “free” time to raise children • Religion or Spirituality • Marital or family status • Potential conflicts of interest with your children • Willingness to serve • Social and moral habits and values • Willingness to adopt your children

Obviously, the perfect choice would score highly on every measure. But because we are all imperfect, you will likely have more success in choosing the few characteristics that are most important to you.

Consider as you make your choice that some factors can be influenced by you and others cannot. Integrity is something you cannot change. But if having an at-home parent is important to you, your prospective guardian might be willing to come home to raise your child if you make it possible through a well-structured and funded plan.

STEP #3: Match people to priorities:

Use the factors you chose in step two to narrow your list of candidates to a handful. Congratulations! You can relax knowing you have many good choices to choose from. Listen to your body and feelings as you consider each person or couple as guardians. You’ll have to use your gut to rank order this short-list into the people you would want first, second, and so on. If you select an attorney experienced in helping parents to minor children, be prepared to answer the following question whenever you have named a couple: “if the couple divorces or, because of death or incapacity, only one of the two can serve, would you like either one to be guardian? Or would you prefer to move to the next name on the list?”

For many families, it’s as easy as it looks. For others, however, these three steps are fraught with conflict. One common source of difficulty is disagreement between spouses. Consensus is important. While you can each name different guardians, most parents are happier when they reach agreement. Explore the disagreements to see what information about values and people you should both understand. Use all your strongest communications skills and empathy to understand each other’s position before you try to find a solution that you can both feel good about.

Regardless of which parent’s family or friends appears more frequently on your final list, it’s important to keep both families involved. One way to do that is to name members of one family as guardians to care for the children, and members of the other family as trustees, to manage the assets for the children. If there is a likelihood of conflict between these family members, be sure to share this with your attorney so that your guardianship can be customized to encourage them to keep the lines of communication open.

STEP #4: Make it positive.

For some parents, getting past this decision quickly is the best way to achieve peace of mind and happiness. For others, choosing a guardian can be the start of a more intensive relationship-building process. An attorney who understands where you and your spouse fall on that spectrum can counsel you appropriately.

Be sure to place your nomination of guardians in a document that will be admissible in court if you are alive but unable to care for your children. The possibility that you may become incapacitated for some period of time is the reason I don’t put guardian nominations in a will, which is only filed with the court upon your death. Then place the name of people who would be bad, or even dangerous, guardians in a separate document. This separate document should be kept secure by your attorney unless and until those people seek to obtain custody of your child, or his assets.

The Intuitive Method

Here is a method for those of you who are not drawn to analytical processes. Close your eyes (after you read this paragraph) and imagine what it would be like for your child to be raised in foster care. Not the nightmare newspaper headline scenario. But also not the best-case scenario. Just average foster care. Once you’ve pictured that carefully, read the next paragraph.

Now, anyone you know who seems better for your child than that imaginary foster parent should go on your nomination of guardians list! Anyone who seems worse should go on your anti-nomination of guardians.

Going Beyond The Nomination

For those who want to use this process as a life-enhancing inquiry, consider the following:

• Guardians, once they know how strongly you feel about their loving and good characters, may choose to become more involved with your children (as “godparents” do in some religions).
• The focus on what you want for your children – regardless of whether you are there to provide it – can clarify your own parenting priorities, in addition to enabling you to create a highly customized estate plan that will convey your values.
• This last idea is not for the faint of heart: you can use planning for your children to consider the impermanent nature of relationships. What do you want to achieve with your children while they’re still at home with you? What legacy do you want to leave for them when you say goodbye?

Although we have shared some ways choosing and nominating a guardian can be an intensive, life-changing process, you should know that it can also be the easiest “legal” issue you’ll ever face. The nomination of guardianship itself can be a very brief document. So use this article as a resource as you make these thoughtful decisions… but take only what works for you. Nominating guardians need not be a life event. However you complete the process, you will find a new level of peace of mind.