Guardians For Minor Children
What Are They, How to Choose Them, and What are Your Options and Considerations
By: Krista D. S. Dupps, Esq.
Krista Dupps is a trust and estates attorney and the mother of two beautiful daughters.
A guardian is a person, or persons, who will look after and care for your minor children when you die. A judge will appoint a guardian who will then be legally responsible for your child or children’s health, well-being, and financial matters. Basically, they become the substitute parent.
It is common sense to choose your nominated guardians very careful. Ideally, you would choose guardians who would be able to raise your children in the same neighborhood, take them to the same schools, and generally raise them just as you raise them now. But in reality, not all of us have the blessing of having a large group of candidates to choose from that live near us and have the perfect family situation that could easily adjust to the sudden influx of our children and have our same cultural, religious, political, and moral standards; meaning there is no family out there that is exactly like yours.
Our first instinct is to look at family and close friends, but sometimes that does not yield very many promising prospects. The choice may not easy, but it is imperative that you make it now before it’s too late. If you don’t name a guardian in a valid Will, you will have no say in who that judge appoints to take care of and raise your children.
So, you may not be able to make the perfect selection but you can make the best one for your children, given all the barriers and complications that may be in your particular family situation.
Going forward, here are some factors you might consider when choosing guardians:
10 Factors To Consider When Choosing a Guardian
Consider the maturity, temperament, energy, long-suffering, and experience that is needed to raise children. Your potential choice doesn’t have to be perfect, but do they have what it takes to be a parent? Are they too young to handle the immense responsibility?
Are they in good enough physical health, to take on the challenge of raising children? Are they perhaps too advanced in years to really handle the physical toll parenting can take on a body.
Does your child already have a close personal or familial connection to your potential choice? Does your potential choice already have a connection with your child, know them and love them already?
Do you, deed down truly trust this person to raise your children with integrity and stability? Can you count on your potential choice to at least try to raise your children according to your wishes and instructions?
Time and Availability
Does your potential choice have the time to dedicate to raising children? Do they are a high-powered, stressful job that could possibly interfere with them giving your children adequate attention, especially considering that you children will, at this point, have lost their parents. This will be a very difficult time of transition for your children and they are going to need a lot of attention and care to get them through this grieving process in a healthy way.
Does your potential choice even want to be considered? Do they even like kids? Perhaps, your choice already has a large family and they would decline to serve because they would not want to deal with the sudden influx of your children into an already full house.
Suitability of Home Life
If your potential choice already has children of their own, are the ages and temperaments of those children compatible with your own? Does it make sense to put your children in that home with those children? Would the presence of those children, make for a safe, nurturing, and happy home life? Is your potential choice married or single? Is their home a suitable place for your children to live?
Standard of Living
Does your potential choice live at or comparable to the current standard of living to which your children are accustomed, or are they going to have to adjust to suddenly having a lots less or even a lot more? Under normal circumstances, kids can adjust fairly well to changes in lifestyles if their parents are there to watch over them and guide them through. But you won’t be there, so in addition to having to grieve for you, will they have to get used to a whole new socio-economic level?
Religion and World View
Does your potential choice hold to the same religious tenants and world view that you do? Are you non-religious and raising your children outside of the constructs of an organized religion? Would your potential choice be willing to raise your children the way you would or would they be more likely to convert your children to their religious beliefs?
Does your potential choice live in the same area as you? Would they have to move or perhaps your children would have to move to a new city or even a new state?
Finalizing Your Choice
These above factors are just that – factors. They are not yes or no questions. It may come down to the perfect choice lives three states away. Or your next door neighbor with six children is the best choice. The weight of each factor is up to you depending on how much each factor really matters to you personally. And, again, there may not be a perfect choice, but there is a best choice. It cannot be stressed enough how important it is for you to make a choice. Don’t wait. Don’t put it off. If you don’t nominate guardians, you have created a potential fight over your kids, which is the last thing they would need.
If the time comes that guardians are needed for your minor children, the judge will usually appoint whomever your have named in your Will. However, keep in mind that the judge will always assess if your named choices are, at that particular time and place, willing and able to serve as guardians. The judge will consider their health, mental and physical capacity, geographic location, financial situation, and current willingness to serve. Given all the considerations, including those whom you have named in your Will, the judge will appoint the best person or persons to raise your children.
Because this vetting process may disqualify your first choice, it is highly beneficial to you to name a list of potential guardians listed in order of priority. Each entry on the list can be a single person, a married couple, or even a panel of people who would give their recommendation to the judge. When listing a married couple, you should specify what it to happen should happen in the event of a divorce or a death of one of the couple.
Additionally if you have a living trust or a Will that creates a Testamentary Trust at your death for the benefit of your children until they reach a certain age, it is often recommended to list different people to be Trustees than your choices to be guardians. This allows your guardians to focus solely on raising your children and your Trustees to focus solely on managing trust funds in a prudent manner.
Contemplated and naming guardians in a valid Will can seem like a daunting, difficult task that is easy to put off. But it cannot be emphasized enough the devastating effects of a custody fight over children who are grieving for lost parents. It can be a tough task but it has to be done.
Please do not hesitate to call our office (619) 683-2545, for a complimentary consultation to review your estate plan and discuss the all-important decision of naming potential guardians for your children. You can also contact us by clicking here!