June 2013

Does choosing a guardian for your minor children make you cringe? You are not alone. This is a difficult decision for most parents, and while there is no single “right” answer, here are some thoughts to consider.

A guardian is responsible for the daily personal care of minor children in the event of both parents’ deaths, and is authorized to make decisions involving living situation, education, medical care, etc. Therefore, you want to choose someone who cares about your children and can provide them with a nurturing, stable home life. Grandparents can be a good choice, but because of the generational difference and potential health challenges, you would want to also name a backup guardian. Siblings, cousins, and friends are also good options, depending on their own circumstances and location, as well as your (and their) children’s life stages. If you are thinking about naming a couple as co-guardians, be sure to clearly express your intent in the event of that couple’s subsequent divorce or one spouse’s death.

You may have concerns about a potential guardian’s fiscal responsibility. However, since most parents leave their children an inheritance (either from assets accumulated during life or from a life insurance policy) through a trust, a trustee manages the children’s money and decides if, when and how to make distributions. While you can name the same person as guardian and trustee, they require different skill sets, and one person may not be a good fit for both roles.

You may also have concerns about a potential guardian’s limited financial resources. However, your guardian is under no obligation to provide financial support for your children. While it may be awkward if there is major financial disparity between your children and guardian, you can manage this somewhat by allowing your children’s trustee to distribute money outright to your guardian if doing so is in the best interest of your children. For example, it may be advisable to utilize trust funds to pay for an expansion of a guardian’s home or to purchase a larger home to accommodate a guardian’s family as well as your own.

It is important that your guardian knows you well, particularly with respect to any child-rearing philosophy you may have. Preferences regarding matters such as religion, education or extracurricular activities can be memorialized in the form of a non-binding memo to guide your guardian. If you do create any such memo, keep it broad and flexible; you do not want to create more questions than answers.

While this may all seem very daunting, remember you can revise your Will during your lifetime as circumstances change. The best guardian for your newborn baby may not be the best choice when your child becomes more involved in his or her school and community. Be sure to revisit this question – however painful – every few years.

Material presented on the King & Navins, P.C. website is intended for information purposes only. It should not be construed as legal advice or the formation of an attorney-client relationship. Please consult an attorney for individual advice regarding your own personal situation.