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Do It Now: Name a Guardian for Your Minor Child(ren)

I know for a fact that this is not what Karen would want!” said Karen mother. Karen was a single mother of a 5 year old daughter. Her daughter’s father died in the Iraq War. One evening, a drunk driver t-boned Karen and her daughter, killing Karen. Karen only had two living relatives at the time of her death, her divorced parents. Her father lived locally and her mother lived in Florida. Because Karen did not have a Will or nominate a guardian for her daughter, Karen’s father petitioned the court to be guardian of his grand-daughter but never told the court about Karen’s mother. Fortunately, the court discovered the existence of Karen’s mother and notified her of the pending guardianship proceeds. Karen’s mother immediately notified the court that Karen would NEVER agree to having her father be the guardian of her daughter … because he had sexually abused his own daughter, Karen.

Hopefully, your story bears zero resemblance to Karen’s. But whatever your situation, you must name a guardian for your minor child or children. We know it is hard. Thinking about someone else raising your children can stop you in your tracks. And yes, it feels crushing and too horrific to even consider. But you must. Now that our girls are adults, my wife and I are blessed to no longer have to torture ourselves with dread from "what if" scenarios. The only greater torture was not doing anything and allowing a stranger to determine who would have raised girls if something happen to us. And that meant the risk of our girls being raised by a guardian who was a relative we despised or even a stranger we had never met.

No one will ever be you or parent exactly like you, but more than likely, there is someone you know that could do a good job of providing for your children’s general welfare, education, and medical needs if you are no longer available to do so. Parents with minor children need to name someone to raise them (a guardian) in the event both parents should die before the child becomes an adult. While the likelihood of that actually happening is slim, as you read earlier, the consequences of not naming a guardian are more than intense.

If no guardian is named in your will, a judge - a stranger who does not know you, your child, or your relatives and friends - will decide who will raise your child. Anyone can ask to be considered, and the judge will select the person he or she deems most appropriate. Families tend to fight over children, especially if there is money involved - and worse - no one may be willing to take your child. If that happens, the judge will place your child in foster care. On the other hand, if you name a guardian, the judge will likely support your choice.

How to Choose a Guardian

Your children’s guardian can be a relative or friend. Here are the factors our clients have considered when selecting guardians (and backup guardians).

  • How well the children and potential guardian know and enjoy each other

  • Parenting style, moral values, educational level, health practices, religious/spiritual beliefs

  • Location - if the guardian lives far away, your children would have to move from a familiar school, friends, and neighborhood

  • The age and health of the guardian-candidates:

  • Grandparents may have the time, but they may or may not have the energy to keep up with a toddler or teenager.

  • An older guardian may become ill and/or even die before a child is grown, so there would be a double loss.

  • A younger guardian, especially a sibling, may be concentrating on finishing college or starting a career.

  • Emotional preparedness:

  • Someone who is single or who does not want children may resent having to care for your children (this is real life, not the movies).

  • Someone with a houseful of their own children may or may not want more around.

WARNING: Like parenting itself, serving as guardian and raising your children is a big deal. DO NOT spring such a responsibility on anyone. Ask your top candidates if they would be willing to serve, and name at least one alternate in case the first choice becomes unable to serve.

Who is in Charge of the Money

Raising your children should not be a financial burden for the guardian, and a candidate’s lack of finances should not be the deciding factor. You will need to provide enough money (from assets and/or life insurance) to provide for your children. Some parents also earmark funds to help the guardian buy a larger car or add to their existing home, so there is plenty of room for extra children.

Factors to consider:

  • Naming a separate person to handle the money can be a good idea. That person would be the trustee in charge of the assets, but not guardian of the children and responsible for the day-to-day raising of the children.

  • However, having the same person raise the children and handle the money can make things simpler because the guardian would not have to ask someone else for money.

  • Still, the best person to raise the children may not be the best person to handle the money and it may be tempting for them to use this money for their own purposes.

Let us Continue this Conversation

We know it is not easy, but do not let that stop you. We are happy to talk this through with you and legally document your wishes. Know that you can change your mind and select a different guardian at anytime. The chances of needing the guardian to actually step in are usually slim (we always hope this is the one nomination that is never actually needed), but, you are a parent and your job is to provide for and protect your children, so let us do this. Call our office now at 301.892.2713 for an appointment and we will get your child(ren) protected.

Live with Your Bags Packed!

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