When preparing a will, the primary emphasis is typically on the disposition of property and related tax issues. However, selecting the right guardian to care for minor children is one of the most significant planning decisions you can make, as it may set the course for the rest of several people’s lives. The failure to designate a guardian can put the lives of your children in the hands of an impersonal court system, and the choice of guardian will contribute to the essence of who the minor children become. The transition to life with a guardian is especially traumatic as a child comes to terms with a new parental figure, likely following a traumatic and untimely death of one or both parents. The guardian you choose will be responsible for helping to heal this wound, instilling values, passing on life skills and raising your children. It is of the utmost importance to choose a guardian with whom you and your kids are comfortable and who has the emotional intelligence, time and interest to raise your children in the event that you are no longer able to.
Choosing a Guardian
The first threshold for choosing a guardian should be finding someone who is willing to act in such an important and responsible capacity. Raising someone else’s children is not a decision a potential guardian should take lightly, as assuming guardianship will change the rest of the guardian’s life as he or she steps in to the role as surrogate parent. This is especially so if the guardian is not currently raising children of his or her own. Not finding an appropriate, willing guardian could create significant legal and emotional problems for your children and the uninterested guardian.
Besides finding a willing person, choosing a guardian involves objective and subjective assessments different from choosing other fiduciaries under a will and trust. A proper guardian should be reliable and stable, with sound judgment and values that are similar to your own. The guardian will be your stand-in to comfort, teach and encourage your children as they struggle and grow to adulthood. A guardian who already has a warm and loving relationship with your child would be immensely valuable in such an emotionally trying transition.
Should You Select a Family Member?
Instinctively, many think the right guardian for their children is a family member. However, in some cases a non-family member may be a better fit. While family is frequently an obvious choice, individual circumstances may make this impractical or undesirable. Hopefully your children are very comfortable with grandparents, or an aunt or uncle who may have similarly aged children of their own. If this is not the case, a close friend with similar values, who lives nearby, and who has kids of his or her own may be a better option than a faraway relative. The choice is specific to your lifestyle and your relationship with your family.
Raising children is expensive. The costs can easily run into the high hundreds of thousands of dollars. Therefore, it is important to work with a knowledgeable estate planner who can help arrange financial support not only directly for your child, but also if necessary, for the personal costs that the guardian incurs in taking care of your children. You may want to consider leaving money for the benefit of the guardian as a way to show gratitude for the increased responsibility that guardianship entails. Another option is to name the guardian as an additional permissible beneficiary of any trusts created for your minor children. For those who cannot afford to leave additional funds for the guardian, choosing a willing guardian with means who would not be overly burdened by the high costs of raising additional children could help avoid placing a guardian or your children in a more difficult position than necessary.
A question that often arises is whether the individual being considered for guardianship should be different from the individual named as trustee of your children’s trusts. On the one hand, naming different people provides a system of checks and balances that would help protect your children’s interests. On the other hand, it is reasonable to assume that the guardian raising your children knows best in terms of their financial needs, and should not have to justify each expense to a trustee in order to receive a distribution for the child’s benefit. In the end, the decision should really depend on the qualities of the particular individuals being selected for those roles.
Choosing a Couple or an Individual and Alternate Guardians
You may be tempted to choose a couple as the co-guardians of your minor children, as you imagine a nuclear family. Unfortunately, couples divorce and families break up. Choosing a couple could thus be problematic if they divorce or if the preferred guardian in the couple dies or is otherwise no longer able to serve in the role. Such a scenario could give guardianship rights to a person whom you are less inclined to have raise your children. Further, if no alternates are named, and the nominated guardian is unable to care for your kids, the decision as to their care could end up being made by a court. As a result, it is often preferable to name individuals instead of couples to act as guardians, and to name one or more alternates in case the first choice is unavailable. This way your wishes can be carried out and the paths of your children’s lives are not at the discretion of a judge if you are unable to care for them.
Revisiting Your Choice of Guardian
Once you have carefully chosen your guardian and alternates, it is important to remember to revisit the choices as circumstances change. As children (and guardians) age, their needs and abilities change. You will want to make sure that the people you have selected a few years ago are still the right choice today.
Please feel free to contact any member of Kramer Levin’s Individual Client Group if you would like to revisit your choice of Guardian or other elements of your estate planning documents.