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Estate Planning 101: Choosing Legal Guardians

Did You Give Your Children the Most Important Gift of All?

January 2017

As the holiday fog subsides and the hottest toys of 2016 are packed away and forgotten – it is important for parents to ask themselves whether they have gotten their children one of the most important gifts of all – an established legal guardian succession plan. In a recent Estate Planning Awareness survey, “What Do Americans Think About Estate Planning?” conducted by WealthCounsel, 71% of respondents felt that a well-thought-out plan would help them feel like a good spouse or parent, implying an awareness of the benefits that planning can offer spouses and children. It should also be noted that only half of those queried (and fewer than half of Gen Xers - who are more likely to require a guardian succession plan for their children) knew that estate plans could be used to provide a guardian for minors. Despite the strong sentiments surrounding guardians, it is an area of preparation often neglected by parents and considered an unpleasant conversation capable of being put off - or as the first post-holiday episode of the popular television sitcom Modern Family iterated, a “jinx” to otherwise healthy and capable parents. In the event that parents become incapable of raising their children and neglect to legally memorialize guardians or successor guardians, the court intervenes and chooses without any knowledge of whom the parents would have preferred. In fact, family members or friends can ask to be considered and the judge will choose whomever they deem to be the best fit - which may be contrary to your non-memorialized preferences.

There are two designations of guardians – guardians of the person and guardians of the estate. Guardians of the estate manage the assets held by a child; whereas, guardians of the person serve the function traditionally associated with the concept of a guardian and essentially become a substitute parent until a minor reaches the age of majority. Parents should take into account a variety of factors should be when choosing either a guardian of the person or estate. A guardian of the person or guardian of the estate certain factors such as values, geographic location, parenting style, financial intelligence, and age may be important factors.

How to Choose a Guardian

Guardian provisions can be added to a will, trust, or a stand-alone guardian form. Prior to meeting with your attorney and executing one of these estate planning tools - a variety of factors should be considered and of course the appointment should be discussed in detail with and accepted by your

proposed guardian. Once executed it is helpful to leave a ‘Note of Instruction’ for the guardian so that should anything happen to you and your guardian is left to raise your child you can provide them with a final set of instructions and wishes. When selecting guardians it is important to know that you are not limited to one person. Although, typically one person may be named as a guardian - it is possible to select a guardian of the estate to oversee your child’s financial well-being, as well as completely separate guardian of the person to raise your child ideologically in the manner that you would have chosen had you been able to do so yourself. In fact, the two designations require distinct attributes that a single person in your life may not possess. Below is a consideration checklist to assist in the decision making process:

  1. Current relationship with your child: If your child is old enough to have an established relationship with the proposed guardian, you should take into account whether your child respects the person and if they get along. Perhaps even allow your child to provide some insight into the selection.
  2. Geographical proximity: Will choosing this person as guardian force your child to have to uproot their life and move to a different state or school district during what is already a time of emotionally instability and upheaval.
  3. Age and Longevity: Is your proposed guardian healthy or age appropriate given the age of your children? Sure your parents may have done a wonderful job raising you, but at their current age are they prepared to raise a toddler until they reach the age of majority.
  4. Parenting Philosophy and Values: Does your proposed guardian shared your values - be they religious, political, goals, or parenting and discipline philosophy?
  5. Financial Stability: Although you would hope to leave your child with a financial safety net, should life insurance or your estate not be enough will the guardian have the financial means and resources to accommodate this responsibility. When choosing a guardian of property it is important to make sure that the person has financially acumen and fiscal prudence.
  6. Character: Is the person that you are choosing to raise your child or to manage your child’s finances in your stead a person of unquestionable integrity.

The thought of planning for your inevitability may seem daunting and even more so when you have children who will have to be raised by someone other than yourself; however, once the task is complete there is a sense of relief and peace of mind. It should be noted that appointing a guardian is not a “one and done” - you should revisit your guardian designations periodically as relationships and circumstances change throughout the years. Although your children will hopefully never require a guardian, after this task is complete you can relax for a while knowing that there is a contingency plan in place for your children and have peace of mind that you have given your children added security, which is the greatest gift of all. 

[1] Current relationship with your child: If your child is old enough to have an established relationship with the proposed guardian, you should take into account whether your child respects the person and if they get along. Perhaps even allow your child to provide some insight into the selection.

[2] Geographical proximity: Will choosing this person as guardian force your child to have to uproot their life and move to a different state or school district during what is already a time of emotionally instability and upheaval.

[3] Age and Longevity: Is your proposed guardian healthy or age appropriate given the age of your children? Sure your parents may have done a wonderful job raising you, but at their current age are they prepared to raise a toddler until they reach the age of majority.

[4] Parenting Philosophy and Values: Does your proposed guardian shared your values - be they religious, political, goals, or parenting and discipline philosophy?

[5] Financial Stability: Although you would hope to leave your child with a financial safety net, should life insurance or your estate not be enough will the guardian have the financial means and resources to accommodate this responsibility. When choosing a guardian of property it is important to make sure that the person has financially acumen and fiscal prudence.

[6] Character: Is the person that you are choosing to raise your child or to manage your child’s finances in your stead a person of unquestionable integrity.