Parents with children under the age of 18 should strongly consider naming a guardian.
If, on the outside chance, both parents were to die or become incapacitated before the children become an adult, the guardian can step in a raise the child.
The consequences of failing to specify who you would like to raise your children can lead to an ugly legal battle, lots of money spent, or someone you would not like raising your children.
When parents fail to name a guardian for their children then a judge (a total stranger) will then be in a position to determine who will raise your child. They will make this determination with no knowledge of whom the parents would have preferred to raise their children. In addition, anyone can ask for the judge to consider them to be named as guardian.
Without a named guardian the Probate Judge will choose whoever he or she feels is most fit.
When parents nominate a guardian in their estate planning documents, the Judge will generally go along with the parent’s wishes.
8 Steps to help you choose a Guardian for minor children
There is no requirement in California that the guardian be a relative of parents or children. Therefore, parents should look to everyone they know.
Here is a list of some of the factors parents should consider when naming a Guardian:
Values and beliefs
Religious beliefs and parenting styles
Location, it is usually a good idea to keep children in the same school so they can keep the same friends during a time of grief
Current relationship of the potential guardian and the child
Age. Grandparents usually will have the time and the resources to be an excellent guardian, but they may not have the required energy for a toddler. If your child is in his or her teens then ask them who they would like to be their guardian.
The emotional intelligence and their ability to take on the responsibility of raising a child.
The willingness of the person to raise the children
People who currently have children who are close in age to your children
When making the decision as to who would be a good fit as a guardian it is a good idea to ask the candidates. Some people may be great with kids on a limited basis but know they could not do it day in and day out. Others may be secretly struggling with finances and the added burden of raising another child may be too much for them to handle. Having an open and honest conversation will save time, money, and grief down the road.
Leaving Money to a Guardian?
Parents should provide enough money from their current assets and plan ahead through life insurance so that the guardian can provide for the child. It is also a wise decision for parents to earmark some money in their estate planning documents through their living trust for the guarding to rent a bigger house with an extra bedroom or buy a larger car, if needed.
It is also a good idea to name a third party (trustee) to handle the money that you leave for your children. Allowing the same person to handle your children’s inheritance and raise your children as a practical matter is obviously the easiest method. You do, however, run the risk of the guardian using the money for their own purposes.
Sometimes the best caretakers are not the best with money management. If this is the case, name someone else to be in charge of the children’s inheritance and make distributions as needed. This all should be part of your comprehensive Estate Plan.
Difficulty Naming a Guardian
Choosing the right guardian can be an incredibly difficult decision for a lot of parents. Nobody will ever be able to raise your children exactly how their parents would. Nobody will be the perfect parent so figure out what is most important to you and compromise on areas that are less important.
Keep in mind that this is simply a precaution to avoid having a judge make that decision on the very slim chance that something were to happen to both parents. In naming a guarding you are being a responsible parent and planning ahead for a very unlikely situation.
Lastly, you should remember that your decision for a guardian is not binding forever. If you decide to change your mind you can change your guardian.
Ideally, raising the child should not be a financial burden for the guardian, and a candidate’s financial situation should not be the deciding factor. The parent will need to provide enough money—be it through savings, assets, or life insurance—to provide for the child.
Further, the person named as the guardian of your children may very well differ from the person granted your power of attorney to handle your finances. Keeping these two considerations separate can make things less complicated for all parties involved.
To this point, setting up a trust for your children is also an option, allowing for you to choose how much money is given to them and what age they are to receive it. There may be specific directives to accompany these distributions if they should need access to the funds as minors.
All of these considerations are worthwhile to discuss with your Estate Planning attorney. When it comes to making such important decisions, it is advisable to take time to think about these choices and to be cognizant of the fact that amendments are also possible by working with your Estate Planning attorney to adjust the documents.
Opelon LLP works in Estate Planning and can help you create a master plan that provides for the election of a guardian for your minor children and that addresses many of your other potential concerns. If you are interested in planning ahead for your children feel free to reach out to one of the experienced estate planning attorneys at Opelon LLP.