Thinking about someone else raising your children feels overwhelming and too terrible to consider. At Thomas Estate Law, we know it’s hard but you must think about it. One of the most important reasons to have a last will and testament is to name a guardian for minor children. Parents with minor children need to name someone to raise them (a guardian) in the event both parents should die before the child becomes an adult. No one will ever be you or parent exactly like you, but there is probably someone in your life you trust who would provide for your children’s general welfare, education, and medical needs if something happens to you. While the likelihood of that actually happening is slim, the consequences of failing to name a guardian for minor children are severe.
If something happens to you and no guardian is named in your will, a judge – a stranger who does not know you, your child, or your relatives and friends – will decide who will raise your child. Anyone can ask to be considered, and the judge will select the person she deems most appropriate. Regrettably, families tend to fight over children, especially if there’s money involved – and worse – no one may be willing to take your child. If that happens, the judge will place your child in foster care. On the other hand, if you name a guardian for minor children, the judge will likely support your choice.
How to Choose a Guardian
Your child’s guardian can be a relative or friend. Here are factors we encourage our clients to consider when selecting guardians (and back up guardians).
Emotional and value-based factors: How well the child and potential guardian know and enjoy each other? What are the potential guardian’s parenting style, moral values, educational level, health practices, religious/spiritual beliefs?
Location: Where does the potential guardian live? If the guardian lives far away, your child would have to move from a familiar school, friends, and neighborhood.
Age-related considerations: Grandparents may have the time, and they may or may not have the energy to keep up with a toddler or teenager. An older guardian may become ill and/or even die before the child is grown, so there would be a double loss. A younger guardian, especially a sibling, may be concentrating on finishing college or starting a career.
Emotional preparedness of the potential guardian: Someone who is single or who doesn’t want children may resent having to care for your children. Someone with a houseful of their own children may or may not want more around.
Who’s in Charge of the Money
Raising your child should not be a financial burden for the person you name as guardian for minor children, and a candidate’s lack of finances should not be the deciding factor. You will need to provide enough money (from assets and/or life insurance) to provide for your child.
Factors to consider:
Naming a separate person to handle this money can be a good idea. That person would be a guardian of the estate or a trustee, but not guardian of the children.
Alternatively, having the same person raise the child and handle the money can make things simpler because the guardian would not have to ask someone else for money.
However, if the person raising the child also is in charge of handling the money, it may be tempting for them to use the money for their own purposes rather than for the benefit of your child.
Compromise Will Likely be Necessary
Naming a guardian is a difficult decision for most parents. Keep in mind that this person will probably not raise your child because odds are that at least one parent will survive until the child is grown. By naming a guardian for minor children, however, you are being responsible and planning ahead for an unlikely, yet possible, situation. It’s important to realize that no one besides you will be the perfect parent for your child, so typically this means making compromises in some areas. Select the person you think will make it through the best and remember that you can change your mind and select a different guardian at anytime you’d like.
Designation of Health Care Surrogate for Your Minor Children
You will also should name a health care surrogate to make medical treatment decisions for your minor children while you are alive, but in the event you and your spouse become incapacitated or are out of town and unable to consent to medical treatment for your child. By naming a health care power of attorney for your minor children, you select who will make those decisions. If you don’t name someone, and your children need medical treatment, a judge who has never met your children and doesn’t know your family values will choose the person who will make those decisions for your family.
Do It Now: Name a Guardian for Your Children.
We know it’s not easy, but don’t let that stop you. We’re happy to talk this through with you and legally document your wishes to name a guardian for minor children. While the chances of needing the guardian named in your will are slim, you’re a parent and your job is to provide for and protect your children, so let’s do this – together. Call our office now for an appointment and we’ll get your children protected.