21 Feb 2012

Selecting Guardians for your Children

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When considering naming guardians for your children, you should be aware that there are two primary responsibilities, which can be assigned to the same person or couple, or can be assigned to different people. There are (1) guardians of the estate; and (2) guardians of the person. The guardian of the estate manages the money or assets held by a child. The guardian of the person is someone who becomes a substitute “parent” for the child should the child’s parents die. Therefore, when you are selecting a guardian you should be mindful of the two types of guardianship roles and choose people with the skills or attributes that best suit those roles. So, for example, your financial advisor brother who lives a bachelor lifestyle may be a great choice as guardian of the children’s estate, but he may be a poor choice for guardian of the children themselves. If you are fortunate, you will have a family member or friend who is well-suited to serve in both capacities, but it is not uncommon to assign these important roles to different people.

Naming a Personal Guardian for Your Children

You should name one personal guardian (and one alternate, in case your first choice can’t serve) for your children. Legally, you may name more than one guardian, but it’s generally not a good idea because of the possibility that the co-guardians will later disagree. Yet, it is common to prefer that two people care for your child — for example, a stable couple who would act as co-parents. If that is your preference, then name both of them so that they each have the legal power to make important decisions on behalf of your child. If you choose a couple you will want to consider whether you would want each person to serve individually if the other half of the couple is no longer available for some reason (death, incapacity, disability). So, for example, you may name your older sister and her husband as joint guardians but also state that if you sister is unable or unwilling to serve as guardian, or if they get divorced, you do not want your children to remain with your brother-in-law but rather to go to the successor guardians – your younger sister and her husband. Issues of disrupting the life of your children by switching guardians must be taken into consideration as you make these decisions.

Here are some factors to consider when choosing a guardian for the person:

  •  Is the prospective guardian old enough? (You must choose an adult –18 years old in most states.)
  •  Does the prospective guardian have a genuine concern for yourchildren’s welfare?
  •  Is the prospective guardian physically able to handle the job?
  • Does he or she have the time?
  • Does he or she have kids of an age close to that of your children?
  • Can you provide enough assets to raise the children? If not, can your prospective guardian afford to bring them up?
  • Does the prospective guardian share your moral beliefs?
  • Would your children have to move?

If you’re having a hard time choosing someone, take some time to talk with the person you’re considering. One or more of your candidates may not be willing or able to accept the responsibility or their feelings about acting as guardian may help you decide.

Naming a Financial Guardian for Your Children

You should name one financial guardian (and one alternate, in case your first choice can’t serve) for each of your children. Legally, you may name more than one guardian, but it’s generally not a good idea because of the possibility that the co-guardians will later disagree. With respect to guardians for strictly financial matters, we do not advise naming a co-guardian; rather, just select a successor guardian to take over if your first choice becomes unable to perform this role.

Here are some factors to consider when choosing a guardian for the finances:

  • Is the prospective guardian old enough? (You must choose an adult – 18 years old in most states.)
  • Does the prospective guardian have a genuine concern for your children’s welfare?
  • Is the prospective guardian able to handle the job?
  • Does he or she have the time?
  • Does he or she have good financial sense and the ability to obtain advice from professionals when needed?
  •  Does the prospective guardian share your beliefs with respect to child-rearing decisions that involve money, such as the importance of an education?
  • Is the prospective guardian ethical so that you have no doubt as to their honesty in managing money for your children?
  • Would the prospective guardian of financial matters work well and fairly with the guardian of your children’s person? If you are choosing different guardians for the finances and person this is a very critical consideration.

If you’re having a hard time choosing someone, take some time to talk with the person you’re considering. One or more of your candidates may not be willing or able to accept the responsibility or their feelings about acting as guardian may help you decide.

You Can Make this Choice!

Remember, if circumstances change, you can update your guardian designations at any time by amending your estate planning documents. The important thing is to take the responsible step and make your choices sooner than later - who else can make better choices for your children than you?

Disclaimer: This article is not a substitute for personalized legal advice and should be considered an introduction to these matters, not a specific guide.

By Sheryl Hunter Esquire

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One Response to Selecting Guardians for your Children
  1. Jennifer,Choosing a guardian is a serouis matter, and a choice like that should never be made simply to avoid hurt feelings. The parents do not need to tell their own parents what they are doing until after they have discussed it with the proposed guardians and signed all of the documents. After that, if the subject comes up, they can explain that it was a difficult decision but they chose to select so-and-so because it seemed like the best choice: they have children the same age, don’t want the child to have to relocate, the grandparents are getting older, etc. They can then reassure their parents that they have explained to the proposed guardians that they want their children to continue to have a relationship with their grandparents. The grandparents may even be relieved that they were not selected, since visiting with your grandchildren and actually raising them are very different experiences.If the parents do not feel comfortable discussing it with their own parents, they may wish to write a letter explaining their choice and keep it with the will.


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