DIVORCE 911 consulted with Greg Jacobs of Jacobs & King for this blog post.
Choosing Guardians for Minors
It makes for an interesting movie storyline. The parents of a minor child tragically perish in an accident. They had no estate plan. A judge awards guardianship of the child and responsibility to oversee the sizeable inheritance to the incredibly immature adult sibling of one of the parents. The crass humor blended with a few predictable, heartwarming moments, make for an entertaining fare at the box office. However, the stakes are much higher in real life, when real lives and real inheritances are at stake.
As in the movie plot, a legal guardian is an adult who is legally appointed to rear an orphaned minor child to adulthood (i.e., age 18 in most states). Every parent of a minor child needs to designate a guardian through proper estate planning. Otherwise, a judge may appoint the “wrong” guardian by default.
Picking the Guardian
Deciding who to designate as guardian can be an extremely difficult and emotional decision. It is one of the main reasons why parents of minor children procrastinate on their estate planning. Therefore, where do you start?
You should make a list of all of the possible candidates. Then discuss the list with the other parent to consider the pros and cons of each individual. Here are some things to evaluate as you work your way through the list of potential guardians:
- Parenting style;
- Values and religious beliefs;
- Your child’s relationship with each of them;
- Location, location, location and the effect of a move;
- Whether there are other children in the home, and if so, how your child would fit into that family;
- Their realistic ability to take on the responsibility of caring for a child, emotionally, financially, and physically; and
- Whether the potential guardian has the time and energy to devote to your child now and later on.
Many couples will choose grandparents for guardianship as their first, natural inclination. However, you should look at their ages and health. You would not want your child to lose his or her parents, then turn around and lose grandparents a few years later.
Practical Pointers
Both parents should ultimately agree on the same person as guardian, as well as successor guardians if the primary is unwilling or unable when the time comes. Before executing the legal documents that make the designation official, ask the guardian if he or she would be willing and able to serve. While it is a matter of common courtesy, from a practical perspective, it is better to know now rather than risk leaving your minor child in a lurch later.
Once signed, legal documents require “legal formalities” to make changes. Therefore, how do you provide guidance to your guardian regarding your wishes for how your children should be reared? Consider writing a letter to cover such practical matters as educational priorities, religious instruction, access to family members, and travel opportunities.
While this letter is not legally binding, it will provide your guardian with some additional guidance on your thoughts when parenting your child. You should update the letter as needed, as well as your estate plan.